N10594

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 375 OF 2014

BETWEEN:
RUPIA KURUMA AND 83 ORS
Plaintiffs

AND:
THE STATE AND ORS
Defendants

Waigani: Gavara-Nanu J
2020: 4th December
2022: 19th August

CIVIL – PRACTICE, AND PROCEDURE – Class Action – Claims for damages – Principles of pleading – Police raid of a village – Damage to properties.

CIVIL – PRACTICE, AND PROCEDURE – Claim for damages – Cause of action – Nexus between tortfeasors and the State – Wrong (Miscellaneous) Provisions Act, Chapter No. 279; s.1(4) – Vicarious liability.

Cases Cited:

Benny Nepal Pole & Ors v. The State (2008) N3500
Blue Water International Ltd v. Mumu [2019] PGSC 41; SC1798
Jubilee Hambru v. Michael Baur & Ors (2007) N3193
Kisa v. Talok [2017] PGSC 51; SC1650
Komai Hariwaja v PNG Power Ltd [2018] PNG 388; N748
Manase v. Andan [2002] PGNC 6; (2002) N2408 
More v. The State & Other [1998] PNGLR 290
Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370
Nare v. The State [2017] PGSC 9; SC1584
Paraia v. Yansuan [1995] PGNC 25; (1995) N134
Pinda v. Inguba (2012), PGSC 13; SC1181
The Central Bank of PNG v. Gabriel Tugiau (2009) SC1013
Tony Kagl v. Frazer Pitpit & Ors (2022) N9470 
Wanis v. Seekiot [1995] PGNC 28; (1995) N1350

Counsel:

K. Makeu and K. Kaki, for the Plaintiffs
T. Mileng, for the Respondents

22nd August, 2022

1.	GAVARA-NANU J:    The plaintiffs are claiming general, special, and exemplary damages against the defendants.  There are 85 plaintiffs, including the lead plaintiff Rupia Kuruma. All the 84 plaintiffs except the lead plaintiff are listed in the Schedule to the writ of summons. They have all signed the Schedule against their names to indicate that they authorized the lead plaintiff to issue the proceeding on their behalf.  The proceeding was issued on 24 April, 2014.  This is therefore a class action by the plaintiffs.  

2.	It is to be noted that following entry of a default judgement against the defendants on 7th November, 2014, the matter returned before me on 4th December, 2020, for assessment of damages.

3.	The principal issue is whether the defendants are liable to the plaintiffs’ claims.  This also raises the issue of whether liability can be revisited.

4.	All the plaintiffs are from Laiagam in the Enga Province.  The plaintiffs’ claims arise out of their claims that police destroyed their properties including houses in a raid of their village on 27th May, 2012.

5.	According to the material before the Court, the raid followed a fatal shooting of a policeman in their area in the afternoon of 26th May, 2012.  The plaintiffs claim the raid was conducted by members of a mobile squad, which was on election duties.

6.	The plaintiffs argued the police should have carried out proper investigations and identified the actual person or persons who killed the deceased and arrest only those who were responsible for the killing. Instead, they raided their village and destroyed their properties.

7.	Mr. Mileng of counsel for the defendants argued that plaintiffs failed to establish a cause of action against the defendants. He submitted the plaintiffs did not plead particulars of their claims; thus, the claims should be dismissed.  Mr Mileng also argued that plaintiffs failed to plead s. 1 (4) of the Wrongs (Miscellaneous Provisions) Act, Chapter 279, to state that policemen who raided their villages did so in the course of discharging their duties, to establish nexus between the tortfeasors and the State. Thus, it was argued that the State cannot be held vicariously liable for the plaintiffs’ claims.  Furthermore, it was submitted that there is insufficient evidence to support the claims.

8.	Mr. Makeu of counsel for the plaintiffs on the other hand argued that there is sufficient evidence to support the claims and establish a cause of action. He relied on the plaintiffs’ supporting affidavits.  He nonetheless submitted that if the Court cannot award individual claims in full, then at least 30% of each claim should be awarded.

9.	There is no dispute that defendants did not file a defence and were given reminder notices regarding the default before the default judgment was entered against them. The defendants also did not file any affidavits at all either to deny and rebut those filed by the plaintiffs or otherwise.  

10.	Whether the Court can revisit liability was raised as a preliminary issue. However, the issue no longer arises because the parties have now agreed that liability can be revisited as a matter of law.  

11.	It is trite law that entry of the default judgement did not relieve the plaintiffs of the onus they bear to prove their claims, even if the default judgment had purportedly been entered regularly.  See Tony Kagl v. Frazer Pitpit & Ors (2020) N9470 and Pinda v. Inguba (2012) PGSC 13; SC 1181. It is also an established principle of law that an assessment of damages must be based on proper pleadings and credible evidence. No award can be made for claims which have not been pleaded or properly pleaded and proved by credible evidence. See, Komai Hariwaja v PNG Power Ltd [2018] PNG 388; N748.

12.	Furthermore, it is a fundamental principle of pleading that any relief sought must be sufficiently pleaded and pleadings must contain facts, not evidence.  It is said that pleadings are ‘pegs’ upon which evidence hang, the pleadings should therefore clearly disclose both facts and law upon which the claims are based and establish a cause of action. The overall objective of pleadings is to inform the defendant of what to defend (Order 8 Rules 7 and 8 of the National Court Rules).  See, Benny Nepal Pole & Ors v. The State (2008) N3500; Jubilee Hambru v. Michael Baur & Ors (2007) N3193; Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370; The Central Bank of PNG v. Gabriel Tugiau (2009) SC1013 and Blue Water International Ltd v. Mumu [2019] PGSC 41; SC 1798.  

13.	It is also a fundamental principle of law that not only the material facts pleaded should establish nexus between the tortfeasor and the State in claims against the State as in this case, but the statutory law establishing that nexus, which is s.1(4) of the Wrongs (Miscellaneous Provisions) Act, Chapter 279, must at least be pleaded by its terms to demonstrate and establish that the tortfeasor was acting in the course of his duties or was purporting act in the course of his duties or functions when he/she committed the wrong. Any other statutory law upon which a claim is founded should also be clearly pleaded. The plaintiffs in this case argued that they have met all these requirements.   

14.	In Pinda v. Inguba (supra), the Supreme Court in stressing these principles said:

 “In other words if the appellant is alleging that the persons who raided his stores were servants, agents and or employees of the State because they were policemen, it is not sufficient to only plead in the amended statement of claim that they were policemen but must also plead that when they raided his stores, they were acting in the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed on them by a statute or the underlying law under the principle of vicarious liability pursuant to section 1 (1) and (4) of the Wrongs (Miscellaneous Provisions) Act, Chapter 297”.  (My underlining).

15.	 In that case, a group of policemen from Wabag Police Station entered the plaintiff’s trade store and destroyed and looted it.  

16.	In Kisa v. Talok [2017] PGSC 51, SC 1650, the Supreme Court followed Pinda and dismissed the appeal because the appellant had in his statement of claim failed to plead that the policeman who shot him was acting in the course of his duties, and failed to plead s.1(4) of the Wrongs (Miscellaneous Provisions) Act, which was the key requirement to establish nexus between the tortfeasor and the State. The first respondent denied shooting the appellant.  The courts in Pinda and Kisa were comprised of 3 judges. 

17.	 The case of Nare v. The State [2017] PGSC 9; SC1584, was decided earlier than Kisa and the decision was by a 5-member bench.  The decision, in that case, was relied on by the plaintiffs in this case.

18.	In Nare a group of policemen in police uniforms driving eight police vehicles accompanied by a police helicopter raided Teremanda village in Enga Province and caused widespread damage to the properties of the appellants.  The appellants claimed damages against the State alleging various liability.  The trial court dismissed their claims on the basis that offending policemen were not named thus failing to establish nexus between the offending policemen and the State. But on appeal, the Supreme Court in taking a more liberal approach than Pinda and Kisa held that State was liable for the actions of the policemen.  The Court noted with affirmation some of the observations the trial judge made, from which the Court found there was nexus between the tortfeasors and the State because the policemen purportedly acted in the course of their duties, thus satisfying the requirements under s.1 (4) of the Wrongs (Miscellaneous Provisions) Act, which the Supreme Court held was the key test for nexus. The Supreme Court said the test to satisfy and establish nexus between tortfeasors and the State was to show that tortfeasors who committed the wrongs were “performing or purported to perform” their duties or functions, as required under s. 1 (4) of the Wrongs (Miscellaneous Provisions) Act. The Supreme Court said:

 “It suffices for present purposes to note that on the facts as found by the trial judge, the wrongful acts of the police officers, though unauthorized, were clearly a mode adopted, albeit gravely improperly, to carry out a function of policing. It must therefore be apparent that in this case, the State was vicariously liable for the wrongful acts of the police members. The substantive justice of the case would seem to warrant an award of damages, perhaps even exemplary damages.”  (My underlying).

19.	 The Supreme Court in saying this also had regard to other observations the trial judge made in which the judge said: 

“Whatever brought police to Teremanda, it cannot have been the whim of the men there or an accidental arrival.’’ 

20.	Another notable observation by the trial judge which the Supreme Court agreed with was where his Honour said:

 “…..the facts alleged were not consistent with rogue police officers or persons pretending to be officers on a frolic of their own"…….the degree of organization apparent and the reported presence on two separate days is utterly inconsistent with any claim of this being other than a well-organized incident’’. 

21.	The Supreme Court said the words “purporting to act” in s.1(4) of Wrongs Miscellaneous Act were key to establishing nexus between a tortfeasor and the State. The Court said: -
“The key to the nexus required as in the words” performance or purported performance” by the wrong doer of his or her duties or functions as delegated by the State. The onus is on the State to prove that the wrongful acts of the tortfeasors was so far removed from their domain of authorized actions as to have no or no purported connection therewith”. (My underlining) 

22.	The Supreme Court went on to say:

“The primary duty of the Court is to give justice. It cannot be just to deny a remedy otherwise established against the State on the basis that another person may also be a tortfeasor. That result would reduce the citizen’s protection against unlawful acts by agents of the State and be in breach of s.37 of the Constitution (equal protection of the Law)”. 

23.	The facts and circumstances in Nare were differentiated from the case of More v. The State & Other [1998] PNGLR 290, in which two policemen who in a police raid of a village, isolated themselves from the rest and committed rape on a woman. The court said the actions of the two policemen could not bind the State because they went “on a frolic of their own” and committed a serious crime. 

24.	I find that this case falls into circumstances akin to those in Nare. In this case, the Local Police Station Commander and members of the mobile squad who were on election duties in the Enga Province were involved in the raid. They could not be said to have gone on a frolic on their own. All the policemen involved in the raid destroyed properties belonging to the villagers when searching for the murder suspect or suspects, which was part of their policing functions. Thus, in the context of s.1(4) of the Wrongs (Miscellaneous Provision) Act, the (wrong doers) as tortfeasors were acting in the course of discharging their delegated functions by the State when they committed the wrongs. As in Nare, the terms of this statutory requirements having been sufficiently pleaded established the nexus between the tortfeasors and the State.  

25.	Having regard to the principles of pleadings observed above and the approach taken by the Supreme Court in Nare which I respectfully adopt, including observations regarding s.1(1) and (4) of the Wrongs (Miscellaneous Provisions) Act, the key issue is whether there was nexus between the actions of the tortfeasors and the State. For reasons already given, I find there was nexus between the tortfeasors and the State.

26.	I propose to deal firstly with the lead plaintiff. He claims damages for the loss of his trade store, a permanent residence, a bush material home, church and a prayer house, store goods, cash, personal belongings, traditional yar trees, plants, flowers and fencing around his property.

27.	For all these, K263,264.00 is claimed plus loss of business at K2,500.00 per week, since 27th May 2012, which is the date of the raid. In his supporting affidavit, the lead plaintiff also claimed other losses for airfares, accommodation, food, vehicle hire to see and instruct his lawyer outside of Enga, and to transport building materials to rebuild his residential property. However, the latter claims have not been pleaded, the claims are therefore refused. See, Komai Hariwaja v PNG Power Ltd (supra) and Tony Kagl v. Frazer Pitpit & Ors (supra)

28.	There is some evidence that the lead plaintiff tried to acquire a business lease over the land where he was residing and conducting business but was not able to obtain the lease. In that regard, the improvements to the property may be deemed illegal. He has provided photographic images of a permanent house, parts of a burnt-out house, and yar trees. 

29.	Turning now to pleadings, at paragraphs 36 to 42 of the statement of claim, he has pleaded material facts regarding the first defendant and the mobile squad members arriving at a place near his area at about 6:30 am on 27th May, 2012, in search of the murder suspect(s). Then between 12:00 pm and 1:00 pm the mobile squad members arrived at his place and caused destruction to his properties. In those circumstances, it would be naive of me to find that those policemen were at the plaintiff’s place on a frolic of their own. They, as I said earlier were there looking for the murder suspect or suspects in their capacity as policemen. That was their call of duty. Thus, the destruction of plaintiff’s properties was done while performing their duties or purporting to do so. In this regard I adopt what the Supreme Court said in Nare. I also note that the plaintiff pleaded s.5 of the Claims By and Against the State Act 1996 and s.1 of the Wrongs (Miscellaneous Provisions) Act. This statutory provision is pleaded in support of the claim that the defendants being servants and agents of the State had acted in the course of or purported to act in the course of discharging their duties to search and apprehend the murder suspect or suspects.  Thus, I find that there was nexus between the actions of the tortfeasors (policemen) and the State.

30.	Thus, I also find the lead plaintiff has sufficiently and clearly pleaded his claims thus establishing a course of action against the defendants. 

Assessment of damages for the lead plaintiff

31.	He has produced photographic images of a permanent residential house and a smaller house before being destroyed by fire.  Then there are images of what he claims are remains of his burnt-out residences and a trade store. The photographic images also show there is a smaller building still standing. The images of the buildings taken before the fire indicate that they were reasonably new.  The images also show a tuffa water tank.

32.	As to the claims for loss of a trade store, there is no independent evidence in support of the claim. Only a typed list of goods which the plaintiff claims have been destroyed by fire has been produced before the Court. There are no photographic images of the trade store and no receipts or records of the goods purchased for the trade store. There are no business records such as tax returns, claims for VAT and so on. Thus, there is no independent evidence to support the claim for loss of business. I perceive that claims for loss of business are related to the claims for the loss of the trade store. In this regard, those who may have helped the plaintiff run the trade store, such as ordering goods for the trade store, issuing receipts for the goods purchased and sold and so on should have sworn supporting affidavits. See, Wanis v. Seekiot [1995] PGNC 28; (1995) N1350; Paraia v. Yansuan [1995] PGNC 25; (1995) N 134 and Manase v. Andan [2002] PGNC 6; (2002) N2408.   

33.	I can understand that fire could or may have destroyed documentary evidence relating to the trade store but there is no reason why other supporting documentary evidence as mentioned above could not be produced before the Court. For example, bank statements, copies of tax returns, and so on. 

34.	Mr Makeu submitted that if the claims cannot be awarded in full then at least a third of each claim by each of the plaintiffs should be awarded. 

35.	The total claim apart from the claims for losses relating to the trade store and any other businesses is K263,264.00; if I was to award a third of the claim, it would be about K87,754.67. 

36.	Notably, the lead plaintiff did not have title over the land he was occupying, which as I said earlier in my judgment means all the improvements on the land may be deemed illegal. But I note from the material before the Court that starting from as way back as 1994, he took steps to acquire a lease over the property. Attempts have been made regularly since 1994 to acquire the lease but all without success. I am satisfied from the material before me that those attempts were genuine. It would in my view be unfair if no award at all was made in his favour.

37.	Thus, from the supporting affidavits of the lead plaintiff, I find on the balance of probabilities, the lead plaintiff did suffer substantial losses relating to his properties, other than the claim business losses relating to the trade store. Thus, given the circumstances of the case, I find that an award is warranted and having regard to submissions by Mr Makeu, I consider that an amount of K90,000.00 is a fair award. I therefore award K90,000.00 to the lead plaintiff for general damages arising from the loss of his properties, besides the trade store. 

38.	For claims for loss of business, which is claimed at a rate of K2,500.00 per week from 27th May, 2012, which was the date of the raid, I am not able to award a substantial amount for the reasons given, especially lack of business records. That said, I am of the view that a nominal amount should be awarded because I find on the balance of probabilities, the lead plaintiff did operate a trade store which he claims was destroyed by the mobile squad members by setting fire to it. In making this finding, I also note that the defendants have not challenged this claim. Thus, I consider K25,000.00 to be a fair amount and I award this amount, inclusive of all other business losses suffered. 

39.	I also consider that given the circumstances of the case, it would be fair for me to award an amount for emotional distress. This award is in my view warranted given that the raid and destruction of the lead plaintiff’s village and properties were done without proper and lawful excuse. The award is consistent with the claim for relief pleaded in terms; - “such other orders as the Court deems fit”.  I consider that the amount of K15,000.00 is warranted and I award this amount.

40.	I consider these awards are a fair compensation for the losses suffered by the lead plaintiff. Thus, the total amount awarded to the lead plaintiff is K130,000.00. I award interest at current 2% from the date of the trial which is 4th December, 2020 to the date of judgment, which is today, 19th August, 2022.     

41.	Regarding the other 84 plaintiffs, I deal firstly with the following 8 plaintiffs: 

(i)	Billy Rupia – I find the signature in his supporting affidavit differs from the signature against his name on the Schedule, which is the list of all 84 plaintiffs (the Schedule). I have doubts which of the two signatures is genuine. He is listed No.1 on the Schedule. I am not satisfied that he is a genuine plaintiff.

(ii)	Wini Pato – 	This person is listed No.9 on the Schedule. The last page of this person’s supporting affidavit is signed by one Josa Pato. There is a Josa Pato who is listed No.8 on the Schedule. Clearly, the purported supporting affidavit having been signed by someone else cannot be relied on by the person for his claims. I am not satisfied that this is a genuine plaintiff.

(iii)	Brian Yesa – This person is listed No.38 on the Schedule. The signature on his supporting affidavit, which is Document No.28 is different from the signature appearing against his name on the Schedule. I cannot be sure which of the signatures is genuine. I am therefore not satisfied that he is a genuine plaintiff.

(iv)	Papito Wari – This person is listed No.44 on the Schedule. In his supporting affidavit which is Document No.25, there is no signature, only a thumb mark. But in his other supporting affidavit, which is Document No.96, there is a signature. Furthermore, the same person who is listed No.44 on the Schedule has no signature against his name on the Schedule. Again, I have doubts whether the supporting affidavits viz; Documents Nos. 25 and 96 were deposed by this person. Thus, I am not satisfied that he is a genuine plaintiff.

(v)	Yogomon Pangu – 	This person is not listed on the Schedule, although he swore an affidavit, which is Document No.26. The affidavit only has a thumb mark. Not being listed on the Schedule means this person is not a genuine plaintiff.

(vi)	Pyata Kovane – This person is not listed on the Schedule. There is a person by the name of Pyata Matape who is listed No. 77 on the Schedule. This person (Pyata Kovane) purportedly swore an affidavit which is Document No.99. The name on the Schedule does not match the name in the affidavit (Document No.99). I have doubts whether this person is a genuine plaintiff.

(vii)	Kajepi Wasa – This person is not listed on the Schedule. There is a supporting affidavit which is Document No. 88 deposed by Kajepi Wari, who is listed No. 46 on the Schedule. This person not being listed in the Schedule raises doubts whether he is a genuine plaintiff.

(viii)	Andi Noah – This person is listed No.79 on the Schedule. His supporting affidavit, which is Document No.82 only has a thumb mark. However, there is a signature against his name on the Schedule. I have doubts whether the signature against his name on the Schedule is genuine. I am not satisfied that he is a genuine plaintiff.

42.	Because of the above discrepancies, I dismiss the claims by the above 8 plaintiffs or persons namely, Billy Rupia, Wini Pato, Brian Yesa, Papito Wari, Yogomon Pangu, Pyata Kovane, Kajepi Wasa and Andi Noah. 

43.	Regarding the rest of the plaintiffs, the remarks I am about to make also apply to the above 8 persons or plaintiffs whose claims or purported claims have been dismissed. I find that pleadings in respect of the 84 other plaintiffs’ claims insufficient. Material facts to establish a cause of action have not been pleaded. The pleadings are very general. Most of the pleadings relate to claims by the lead plaintiff. The only other plaintiff who is personally named in the pleadings as suffering losses is Billy Rupia but his signatures on his affidavit and Schedule have been discredited resulting in his claims being dismissed. The properties the rest of the plaintiffs lost, if any, have not been pleaded. There are no particulars pleaded regarding their individual claims and losses. There are blanket pleadings in which the plaintiffs have made similar duplicated claims of losing trade stores, and domestic animals. The question is, did they own same things? The defendants have not been told through pleadings what they must meet in their defences. More significantly, all the supporting affidavits without any exception say the same things verbatim. 

44.	All 84 plaintiffs adopted the same form of affidavit and deposed to the same things or matters. This suggests that all the 84 plaintiffs suffered the same types of losses, which is incredible. In any event, the matters deposed to in their supporting affidavits are also insufficient to substantiate their claims.

45.	For all these reasons the claims by the rest of 84 plaintiffs are dismissed. I make no orders as to costs regarding these plaintiffs.  

46.	Regarding the lead plaintiff, I order that his (Rupia Kuruma’s) costs of and incidental to the proceeding be paid by the State, which are to be taxed, if not otherwise agreed.
  
47.	Orders accordingly.
______________________________________________________________________
Corrs Chambers Westgarth: Lawyers for the Appellant 
Solicitor General: Lawyers for the First, Second, Third, Fourth and Fifth Respondents 
Tangua Lawyers: Lawyers for the Sixth Respondent