N9416

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 595 OF 1997

BETWEEN
MARK IPUIYA
Plaintiff

AND
GEORGE WAUGULO
First Defendant

AND
THE INDEPENDENT OF STATE PAPUA NEW GUINEA
Second Defendant

Waigani: Makail, J
2021: 7th July
2022: 4th February

LIABILITY – Tort of trespass – Trespass to property – Police raid – Destruction of property and arson by members of Police – Proof of – Vicarious liability – Wrongs (Miscellaneous Provisions) Act, Ch 297 – Section 1
DAMAGES – Assessment of damages – Award of damages – Special damages for property loss – Destruction and burning down of dwelling houses, administration building, lodge and fuel service station – Loss of business income – Damages for breach of constitutional rights – General damages for frustration and hardship – Exemplary damages – Proof of – Duty to mitigate loss – Failure of – Discount of awards   
Cases Cited:
Abel Tomba v. The State (1997) SC518
Apa & Ors v. The State [1995] PNGLR 43
Amaiu v. CIS Commissioner [1993] PNGLR 87
Aina Mond & Ors v. The State (2004) N2638
Eton Pakui v. The State (2006) N2977
Hodson v. The State [1985] PNGLR 303
James Koimo v. The State [1995] PNGLR 353 
John Tuink Salamon v. The State (1994) N1272
Jack Pinda v. Sam Inguba & The State (2012) SC1181
Lemson L Mabiria & Ors v. Jimmy Onopia & The State (2021) N8911
Peter Na-al v. Michael Debege & Fly River Provincial Government (2000) N1958
Peter Aigilo v. Sir Mekere Morauta & Ors (2001) N2103

Counsel:
Mr. L. Aigilo, for Plaintiffs
Ms. C. Kuson, for Defendants

JUDGMENT
4th February 2022

1.	MAKAIL, J: This is a trial on liability and assessment of damages.  Trial was by affidavit with no cross-examination of witnesses with submissions following suit.  The plaintiff is the remaining plaintiff out of 556 others who sued the defendants for tort of trespass to property as a result of destruction, looting and arson committed by members of the Police led by the first defendant in a typical police raid setting at Tulipato village, Mulitaka Lagaip District of Enga Province on 23rd September 1992.  The other plaintiffs were struck out by the Court on 10th June 2004 after the presiding judge found that there was no evidence that they had authorised the plaintiff to commence this proceeding for and on their behalf. 

2.	Pursuant to the amended writ of summons and statement of claim filed 24th August 2009, the plaintiff sought the following damages:
(a)	Special damages for loss of property.
(b)	Loss of business from 23rd September 1992 to 23rd September 2008.
(c)	General damages for breach of constitutional rights.
	(d)	Exemplary damages.
	(e)	Interest.	
	(f)	Costs

Liability

3.	The plaintiff relied on the following:

	(a)	His affidavit in support filed 12th February 2021,
	(b)	Affidavit of Luke Pakui filed 12th February 2021,
	(c)	Affidavit of Julie Apia filed 12th February 2021,
	(d)	His affidavit filed 12th February 2021, and
	(e)	Affidavit of Betty Apia filed 12th February 2021.
	
4.	He further relied on the following:

	(a)	Affidavit of Noah Kana filed 2nd March 2006,
	(b)	His affidavit filed 2nd March 2006,
	(c)	Affidavit of Cain Kupe filed 2nd March 2006,
	(d)	Affidavit of T. Monee filed 4th May 2006,
	(e)	Affidavit of I. Esakane filed 4th May 2006,	
	(f)	Affidavit of R. Tolo filed 4th May 2006,
	(g)	Affidavit of P. Sowai filed 4th May 2006,
	(h)	Affidavit of K. Tumu filed 4th May 2006,
	(i)	Affidavit of P. Nipi filed 4th May 2006,
	(j)	Affidavit of T. Ipali filed 4th May 2006,
	(k)	Affidavit of H. Yarta filed 4th May 2006,
	(l)	Affidavit of J. M. Rau filed 4th May 2006,
(m)	Affidavit of D. Yandasing filed 4th May 2006,
(n)	Affidavit of L. Yulin filed 4th May 2006,
	(o)	Affidavit of J. Polo filed 4th May 2006,
(p)	Affidavit of M. Loo filed 4th May 2006,
(q)	Affidavit of P. Raisa filed 4th May 2006,
(r)	Affidavit of E. Atone filed 4th May 2006,
(s)	His affidavit filed 12thSeptember 2006,
(u)	His affidavit filed 31st March 2009,
(v)	His affidavit filed 5th May 2009, and
(w)	Affidavit of Karlus Kepakan filed 5th May 2009.

5.	The defendants relied on the following:

	(a)	Affidavit of Charity Kuson filed 16th August 2018, and
	(b)	Affidavit of Wasa Apia filed 13th March 2020.

6.	The plaintiff asserted that an unspecified number of members of the Police from the Special Mobile Squad based in Wabag and Laiagam led by the first defendant arrived in number of motor vehicles at Tulipato village on the morning of 23rd September 1992, destroyed, looted and set fire to his property.  The property consisted of dwelling houses, an administration building, a lodge and a fuel service station.  The lodge was said to have 77 rooms.  Other witnesses gave eyewitness accounts of the tortuous acts to corroborate his assertions.

7.	Constable Wasa Apia asserted that there was no raid by members of the Police and that the plaintiff’s property was destroyed and set fire upon by members of an enemy tribe.  He also asserted that there was no such property as described by the plaintiff and the plaintiff owned no such property.  His assertions were refuted by Julia Apia and Betty Apia.  These two women are Constable Wasa’s daughters and they asserted that the content of their father’s affidavit was fabricated and untrue.  They asserted that the affidavit was prepared and given to him to sign in their presence.

8.	Counsel for the plaintiff submitted that the affidavit of Constable Wasa Apia is inadmissible because it was filed outside the time fixed by the Court, thus in breach of the order of the Court.  Secondly, it was fabricated because it was prepared and given to him to sign in the presence of his daughters.

9.	Thirdly, counsel submitted that in a related case in Eton Pakui v. The State (2006) N2977, the Court found the State liable for the police raid at Tulipato village.  Thus, in this case liability should be entered as a matter of course.

10.	The affidavit of Charity Kuson is relevant to explaining the delay in getting the matter ready for trial but not relevant to establishing the facts of the alleged police raid and is disregarded to that extent.  As to the submission that the Court had previously decided the issue of liability in the related case in Eton Pakui v. The State (supra), there is no specific finding that the plaintiff’s properties were destroyed and set on fire by the members of the Police during the raid on 23rd September 1992.  Thus, the issue of liability is still alive and must be proved by the plaintiff.

11.	The plaintiff’s affidavit is quite clear in relation to the events of 23rd September 1992.  An unspecified number of members of the Police from the Special Mobile Squad based in Wabag and Laiagam led by the first defendant arrived in number of motor vehicles at Tulipato village on the morning of 23rd September 1992 destroyed, looted and set fire to his property.  The property consisted of dwelling houses, an administration building, a lodge and a fuel service station.  His version of event is corroborated by other eyewitnesses.

12.	The other witnesses whose affidavits were relied upon by the plaintiff and identified at [4] above corroborated the plaintiff’s assertion that the members of the Police entered Tulipato village on the said date and destroyed and looted his properties including burning down of his properties.  Witnesses Letes Yulin who was the Assistant Manager of the lodge, Minakai Loo a cleaner at the lodge, John Polo, a security guard at the lodge, Dennis Yandasing the Manager of the lodge, Robert Poko, the receptionist at the lodge, Tamubana Ipali, a guest at the lodge, James Moses Rau, a PMV passenger and Henry Yarta a PMV passenger identified the burning down of the plaintiff’s dwelling houses, administration building, lodge and fuel service station.  Some of these witnesses were forced at gun point by members of the Police to set the buildings on fire using petrol.

13.	The plaintiff further explained that there was another police raid in the same village on 30th September 1992.  He instituted proceedings at Mt Hagen National Court in 1994 in WS No 874 of 1994 as principal plaintiff. It is a different claim to the present one. 
 
14.	On the other hand, Constable Wasa Aipe asserted that the plaintiff did not own any of the properties as described.  In essence, the assertions by the plaintiff of loss of property is untrue.  Constable Wasa’s assertion is refuted by two of his daughters who asserted that their father’s affidavit was fabricated.  He was very ill and on the verge of dying when he signed the affidavit.

15.	The issue then is whose version should be accepted? The plaintiff’s version is accepted for the following reasons: First, the plaintiff was an eyewitness to the destruction and burning down of his dwelling houses, administration building, lodge and fuel service station on the said date. Secondly, the plaintiff described in detail how the members of the Police destroyed and burned down his properties.  

16.	Thirdly, eyewitness accounts came from Letes Yulin, John Polo and others mentioned earlier who corroborated the plaintiff’s account those members of the Police led by the first defendant destroyed and set fire on the plaintiff’s properties.  Fourthly, there is a strong inference to conclude that because other villagers’ properties were destroyed by the members of the Police under the command of the first defendant in Elton Pakui case (supra), the same group also destroyed and burned down the plaintiff’s properties and it is a separate cause of action from WS No 874 of 1994 proceeding. 

17.	Finally, the aftermath of the destruction of the properties, a valuation report was prepared by Noah Kana from Moody Real Estate Ltd and supported by Cain Kupe who was the builder engaged by the plaintiff to build the dwelling houses, administration building, lodge and fuel service station.  According to these witnesses, the buildings were modern as they were built using concrete and timber with glass and iron roofs and fitted with solar water system. 

18.	As for the defendants’ sole witness Constable Wasa Aipe, his evidence is strained with credibility because first, after all these years and when he was on the verge of dying he was approached by the defendants to give a statement and he does not explain why it took him that long to do it. Second, the statement does not refute the assertions made by the plaintiff and his witnesses in relation to the destruction of the plaintiff’s properties.  It is too general and vague.

19.	Third, two of his daughters have categorially denied the veracity of the statement as it was prepared by someone prior to their father signing it.  When it was given to their father to sign, it may be inferred that he was too ill to know what he was signing.  This may explain why he did not identify or name the two tribes that he claimed were responsible for the plaintiff’s property losses.  If there was any truth in his assertion that the plaintiff was not the owner of the fuel service station, he did not even identify or name the owner of the “village hut fuel outlet”.  And finally, the first defendant who has been named and identified as one of the tortfeasors did not file an affidavit to refute the assertion that he led the members of the Police and destroyed the plaintiff’s properties and the assertions by the plaintiff stand uncontroverted.

20.	Ms Kuson of counsel for the defendants submitted that the whole proceeding should be dismissed because the plaintiff failed to plead that the first defendant and members of the Police were acting in the course of their employment or within the scope of their duty when they committed the alleged tortuous acts and the second defendant should not be vicariously liable under Section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297.  She relied on the Supreme Court decision in Jack Pinda v. Sam Inguba & The State (2012) SC1181 as authority for this proposition.
  
21.	However, paragraphs 5 and 10 to 13 of the statement of claim in the amended writ of summons sufficiently state and a reader can be able to identify that the members of the Police under the command of the first defendant were acting in the course of their employment or within the scope of their duty when they allegedly destroyed the plaintiff’s properties.  Therefore, the second defendant as the employer is vicariously liable for the tortious acts.

22.	Ms Kuson put forward an alternative submission that the members of the Police and the first defendant were on a frolic when they committed the alleged tortuous acts and these tortious acts constituted criminal offences and the second defendant should not be vicariously liable for their actions.
  
23.	The common law action of trespass is an actionable tort and the plaintiff is entitled to sue to claim damages for the property losses.  If the members of the Police committed a criminal offence, that is a separate matter and is not a bar to the plaintiff suing for damages and hold the State as the second defendant as their employer, vicariously liable. 
 
24.	On the evidence, there will be a finding that the members of the Police under the command of the first defendant destroyed and burned down the plaintiff’s dwelling houses, administration building, lodge and fuel service station.  The second defendant is vicariously liable for the tortious acts of the members of the Police under the command of the first defendant under Section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

25.	Judgment on liability is entered against the defendants. 

Assessment of Damages
26.	It is trite law that judgment on liability does not relieve the plaintiff from proving his damages.  

Special damages for loss of property
27.	The plaintiff sought special damages for loss of property.  As found, he lost his dwelling houses, administration building, lodge and fuel service station in the police raid. 

28.	According to Noah Kana, the total value of the dwelling houses comprising of manager’s residence and duplex 2 x bed-room house, administration building, 77 bed-room lodge and fuel service station and generator shed is K2,836,430.00.  This value is verified by Mr Cain Kupe who is the principal of Kebophil Builders and Hardware Supplies Limited and was responsible for the construction of the dwelling houses, lodge and fuel service station.  He estimated the costs of construction was K2.6 million.

29.	The plaintiff’s counsel submitted that based on the valuation given by Mr Kana and Mr Kupe, the sum to award is K2,836,430.00.  On the other hand, Ms Kuson submitted that the valuation of K2,836,430.00 has been inflated because first, the valuation conducted by Mr Kana was on 25th July 1992 and Mr Kana did not explain why it was done almost two months prior to the police raid.  Second, there are no photographs of the properties to verify the type of structures and value to attach to them.

30.	Ms Kuson’s submission is accepted for the reasons she has given.  The sum of K2,836,430.00 has been inflated.  In addition, Mr Kana did not say how he worked out the value of each building structure and the chattels contained in each.  For example, he did not say if the value attached to each building structure was based on total payment receipts and likewise, the chattels.  The total value also suggests that the materials used to construct the buildings were of high quality but not supported by evidence of payment receipts.  As Mr Kupe was the construction manager, he failed to produce copies of receipts of payments to corroborate the costs of materials listed for construction of each building structure.

31.	Ms Kuson urged me to adopt the approach in a recent police raid case in Lemson L Mabiria & Ors v. Jimmy Onopia & The State (2021) N8911 dated 5th July 2021 where the valuation report was strained with credibility and exaggerated.  The Court discounted the sum claimed by 90%.  I will adopt this approach, but as there is a valuation report and further Mr Kupe’s evidence to guide the Court to assess a reasonable award of damages, discounting the sum of K2,836,430.00 given by Mr Kana by 50% gives K1,418,215.00.  This sum is awarded for loss of value of dwelling houses, lodge and fuel service station.
Loss of Business from 23rd September 1992 to 23rd September 2008
(a)	Lodge
32.	Counsel for the plaintiff submitted that the lodge brought in income from 77 rooms at K100.00 per day which came up to K7,700.00 per day.  In a year, it made K2,810,500.00. As for the fuel service station, it made an income of K2,500.00 per day.  In a year, it made K912,500.00.
  
33.	The plaintiff pleaded and claimed loss of business income from 23rd September 1992 to 23rd September 2008.  This is a period of 16 years.  As he has not pleaded and claimed loss of business income from 24th September 2008 to date of trial or judgment, it will not be considered.  As for what he sought, the total sum for loss of business income for the lodge of K2,810,500.00 and loss of business income of fuel service station of K912,500.00 is K3,723,000.00 per year.  For 16 years, K59,568,000.00.

34.	However, the plaintiff also has a duty to mitigate his losses and that includes rebuilding his lodge and fuel service station business.  He cannot put the blame squarely on the defendants for his losses and expect them to meet all of them.  What has he done in 16 years to mitigate his losses?  He does not explain.  Apart from collating evidence and filing affidavits from eyewitnesses and professional experts (Valuer, Builder and Accountant), all he did was making numerous representations to the defendants to settle the claim out of court.  There was lack of a genuine effort in progressing the matter to trial as can be seen from the one or two times the trial was vacated.
35.	However, he will be awarded loss of business income and it will not be for 16 years.  It will be less than that to take into account the delay on his part to bring the matter to trial at the earliest convenience.  Secondly, if the lodge was making K7,700.00 per day as he has asserted, he should have enough ‘reserves’ or ‘savings’ to rebuild his business.  Insurance is another option and source of funding to rebuild the business to mitigate the loss.  There is no evidence from the plaintiff if the lodge has been insured and the insurer has funded the costs of rebuilding it.  

36.	If the plaintiff has not provided evidence of a bank statement as a primary source of information to verify his source of income and amount of income each fortnight then it is doubtful if the lodge was making K7,700.00 per day from the 77 rooms.  In real time, it is not always the case that the lodge would be fully booked each day and would generate K7,700.00 per day.  That is, the guests per day will fluctuate.  This is open to find because the plaintiff has not provided a list of guests who have booked into the lodge prior to its destruction. This evidence should come from the managers of the lodge without the need to go back to the guests records which were destroyed in the fire. What can be glean from this sum is, it is an estimate of the kind of income the lodge would bring in, each day, for the 77 rooms.  

37.	Even the plaintiff’s Accountant Karlus Kepaken in his affidavit did not take this into account in his assessment of the losses and his report has been exaggerated and not based on primary source of documents such as bank statements and receipts of payments.  It is more or less based on second hand information and is disregarded.  This means that there will be a discount on the sum claimed per day by 60%.   Reducing K7,700.00 by 60% gives K3.080.00 per day.

38.	Then taking into account that there is no evidence of the plaintiff mitigating his losses and making an effort in rebuilding the lodge business, the proposed period by the plaintiff of 16 years will be reduced.  Generally and subject to its ‘reserves’ or ‘savings’ or insurance, a reasonable period of time for a business venture to rebuild its business is about three years.  In this case, three years will be adopted to calculate the loss of business income.  This will be from 23rd September 1992 to 23rd September 1995.  Loss of business income at K3,080.00 per day is K1, 124,200.00 per annum.  For three years is K3,372,600.00.    Finally, deducting 10% from this sum for contingencies like early closure of business tribal fights, fire, etc., the final sum is K3,035,340.00.  This sum is awarded for loss of business income for 3 years for the lodge business.
(b)	Fuel Service Station
39.	As for the fuel service station business, counsel for the plaintiff submitted that it was making an income of K2,500.00 per day.  For one year, it was making K912,500.00. However, again the plaintiff has a duty to mitigate his loss and there is no evidence that he has done that in 16 years.

40.	In addition, apart from attaching copies of bank statement of Porgera Joint Venture, invoices and payment receipts which were quite illegible for periods 1997 to 2001 and have no relevance and application to assessing the loss, there is no evidence of a bank statement (which can be readily accessed at the bank upon request) for the period prior to the destruction of the fuel service station to work out the source of income and amount of income generated from the sale of fuel from the fuel service station.

41.	As in the case of the lodge, the sum of K2,500.00 per day is only an estimate, because an income per day from the sale of fuel will vary or fluctuate.  Finally, again the accountant Mr Kepakan’s report on the loss of income for the fuel service station is exaggerated because it did not take into account the fluctuation in the daily income of the sale of fuel and not based on primary source of documents such as bank statements and receipts of payments.  It is more or less based on second hand information and is disregarded.

42.	There will be an award of loss of business income for the loss of fuel service station, though but it will not be for a period of 16 years and at K2,500.00 per day for the reasons as stated above.  The sum of K2,500.00 per day will be discounted by 60% and will give a sum of K1,000.00 per day.  For one year, the loss of business income based on K1,000.00 per day is K365,000.00.  For three years is K1,095,000.00.  Finally, deducting 10% for contingencies like early closure of the fuel service station, tribal fights, fire, etc., the final sum to award is K985,500.00 for loss of business income for fuel service station business for three years.
43.	The total sum to award for loss of business income for lodge and fuel service station business for three years is K4,020,840.00.

General damages for breach of constitutional rights
44.	The next head of damages sought are for breach of constitutional rights.  He relied on the following rights and freedoms which he said were breached:
	(a)	Section 36 – Freedom from inhuman treatment.
	(b)	Section 37 – Protection of the law.
	(c)	Section 44 – Freedom from arbitrary search and entry.
	(d)	Section 49 – Right to privacy.
	(e)	Section 53 – Unjust deprivation of property.

45.	This was a case where the actions of the members of the Police were inhuman and criminal in nature.  Without lawful authority and reason, they entered and without conducting a decent search of the property, they destroyed and looted the plaintiff’s property.  By their conduct, they have intruded into the plaintiff’s privacy and also deprived him of his property.  The plaintiff has established damages for breach of constitutional rights to be awarded in this case. 
 
46.	The statement by the Court in Apa & Ors v. The State [1995] PNGLR 43 is pertinent to reinforce the Court’s view in relation to award of damages for breach of constitutional rights:
“The wilful destruction of citizens’ homes and even whole villages, without justification or lawful excuse is clearly a breach of fundamental constitutional rights.  It is worse than that, it is criminal, but in any case certainly warranting the compensation that Section 58 of the Constitution envisages.”
47.	From the cases cited by counsel for the parties, the awards ranged from K400.00 to K5,000.00 in similar settings. In James Koimo v. The State [1995] PNGLR 353 K400.00 was awarded, Amaiu v. CIS Commissioner [1993] PNGLR 87 K4,500.00 was awarded, John Tuink Salamon v. The State (1994) N1272K2,000.00 was awarded to each plaintiff, Apa & Ors v. The State (supra) K2,000.00 was awarded to each plaintiff and Aina Mond &Ors v. The State (2004) N2638 each plaintiff was awarded K5,000.00.
48.	As different number of rights and freedoms were breached, there will be an award for each breach as follows:
(a)	Section 36 – Freedom from inhuman treatment – K2,000.00.
	(b)	Section 37 – Protection of the law – K2,000.00.
	(c)	Section 44 – Freedom from arbitrary search and entry – K2,000.00.
	(d)	Section 49 – Right to privacy – K2,000.00.
	(e)	Section 53 – Unjust deprivation of property – K2,000.00.
49.	Total sum awarded for breach of constitutional rights is K10,000.00.
General damages for frustration and hardship

50.	The plaintiff did not plead and seek a specific relief in the prayer for relief for general damages for frustration and hardship.  However, at paragraphs 16 and 17 of the statement of claim, he has pleaded and alleged that because of the tortuous conduct of the members of the Police, he and his family have suffered distress and hardship.  For this reason, it will be considered. 

51.	The plaintiff’s counsel submitted that the facts of the case justified an award of general damages for frustration and hardship. Counsel cited Hodson v. The State [1985] PNGLR 303 where K6,000.00 was awarded to the plaintiff for distress, frustration and hardship, followed by Peter Na-al v. Michael Debege & Fly River Provincial Government (2000) N1958 where K15,000.00 was awarded to the plaintiff and Peter Aigilo v. Sir Mekere Morauta & Ors (2001) N2103 where K20,000.00 was awarded to the plaintiff.  In this case, counsel submitted K50,000.00 is fair and reasonable to award.  Counsel for the defendants did not make any submissions on this head of damages.

52.	The plaintiff asserted that he and his family suffered immense distress, frustration, and hardship over the years. However, as Ms Kuson pointed out in her affidavit, the plaintiff contributed to the delay.  After the decision of the National Court striking out the rest of the plaintiffs, the plaintiffs filed a review to the Supreme Court and lost.  Then the plaintiff amended the statement of claim and caused the defendants to file a defence.  Then the plaintiff attempted out of court settlement and even attempted to apply for summary judgement.  Except for unavailability of the trial judge and trial was, twice vacated, the plaintiff had numerous opportunities to get the matter fixed for trial. All these events are not denied by the plaintiff and for these reasons, K50,000.00 suggested by his counsel will not be awarded but a sum of K10,000.00 will be awarded.

Exemplary damages
53.	Counsel for the plaintiff submitted that an award of exemplary damages against the second defendant will go to show that the Court’s disapproval of the actions by the members of the Police and the first defendant.  An award of K5,000.00 is reasonable.

54.	It was held by the Supreme Court in Abel Tomba v. The State (1997) SC518 that exemplary damages are awarded against individual members of the Police. The actions of the members of the Police calls for an awarded of exemplary damages to mark the Court’s disapproval for the actions of the members of the Police.  The plaintiff’s counsel submission is upheld.  As the first defendant has been the only tortfeasor identified and sued, he will be ordered to pay exemplary damages in the sum of K2,000.00 to the plaintiff.

Summary
55.	In summary the plaintiff’s award of damages comprised of:
	(a)	Special damages for property loss 			 K1,418,215.00	
(b)	Loss of business income for lodge 
and fuel service station for 3 years 			 K4,020,840.00
(c)	Damages for breach of constitutional rights.  	K10,000.00
(d)	General damages for frustration and hardship. 	 K10,000.00	

(e)	Exemplary damages. 					 K2,000.00	
										-------------------		Total 								 K5,461,055,00
										-------------------
Interest
56.	The plaintiff’s counsel submitted that interest be awarded on the judgment sum at the rate of 8 % under the Judicial Proceedings (Interest on Debts and Damages) Act, 1962.  The 1962 Act has been repealed and replaced by Judicial Proceedings (Interest on Debts and Damages) Act, 2015.  Pursuant to Sections 4 and 6, the applicable rate of interest is 2% for pre-judgment and post-judgment interest.
  
57.	While the purpose of awarding interest is to compensate the plaintiff for being kept out of money, the plaintiff’s track record in prosecuting this matter has not been impressive.  Far too many times he had attempted to settle the matter out of court over a period of 24 years since the proceeding was instituted in 1997 including filing of an appeal to the Supreme Court in the early stage of the proceeding after the National Court struck out other plaintiffs to the proceeding. He had the opportunity to go to trial at the earliest convenience and he did not.

58.	Sections 4 and 6 conferred discretion on the Court to award interest at the rate of 2% on whole or part of the judgment sum and from date of cause of action or date of commencement of proceeding or date of trial to date of judgment and until final settlement.

59.	As the plaintiff’s conduct in prosecuting the matter has not been impressive, interest at the rate of 2% is awarded on part of the judgment sum and will ran from date of trial of 7th July 2021 to date of judgment and until final settlement. As to which part of the judgment sum interest will be awarded, it will be on special damages for loss of property of K1,418,215.00.

Legal costs 
60.	As the plaintiff has been able to prove liability and damages, he is awarded costs of the proceedings to be paid by the second defendant and, to be taxed, if not agreed.
Order
61.	The orders are:
1.	Judgment on liability is entered against the defendants. 

2.	Judgment is entered in the total sum of K5,461,055.00 which shall comprised of:

(a)	Special damages for loss of property in the sum of K1,418,215.00.
(b)	Loss of business income from 23rd September 1992 to 23rd September 1995 in the sum of K4,020,840.00.
(c)	Damages for breach of constitutional rights in the sum of K10,000.00.
(d)	General damages for frustration and hardship in the sum of K10,000.00.
(e)	Exemplary damages in the sum of K2,000.00 against the first defendant.
3.	The second defendant shall pay interest at the rate of 2% on the judgment sum of K1,418,215.00 from date of trial of 7th July 2021 to date of judgment and until final settlement pursuant to Sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.

4.	The second defendant shall pay costs of the proceeding, to be taxed, if not agreed.
________________________________________________________________
Gibson Bon Lawyers:	Lawyers for Plaintiff 
Solicitor General:		Lawyers for Defendants