Aure v Boko and The State [1995] PGNC 114; [1996] PNGLR 85 (11 August 1995)

PNG Law Reports 1996

[1996] PNGLR 85 - Aimon Aure v Captain Peter Boko and The State

[1996] PNGLR 85

N1346

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

AIMON AURE & OS

V

CAPTAIN PETER BOKO AND THE STATE

Mount Hagen

Woods J

2 August 1995

11 August 1995

STATE AGENTS - Actions for wrongs of officers of the Defence Force and Police - Practice and procedure in trials of multiple plaintiffs - Pre trial hearings and admission of evidence.

DAMAGES - Coronial inquiry - Assessment of property damage in village raids - exemplary damages on servants of the State - Proper valuation of village houses - Bare assertions of loss not sufficient.

Facts

Claim for damages arising out of destruction and looting by members of the police and defence forces under the command of Captain Peter Boko. A second claim is for exemplary damages.

Held

N1>1.       State is liable for the destruction of property caused by the Defence and Police personnel during the raid.

N1>2.       Bare assertion of value of loss not sufficient and Court must come up with reasonable value.

N1>3.       General damages in the order of K346,821.85 awarded against first and second defendants.

N1>4.       Exemplary damages of K71,500 awarded against first defendant.

Counsel

S Norum, for the plaintiffs.

P Kiele, for the defendants.

11 August 1995

WOODS J: The plaintiffs are all villagers from Gunagi in the Sina Sina area of the Chimbu Province and they are claiming damages for the looting and destruction of their houses and property by a squad of Defence Force soldiers and Police led by the first defendant Captain Peter Boko on 22, 23 July 1991. They are proceeding against the State as the Defence Force soldiers and police were acting as officers of the State and it is alleged that the actions of the officers of the State were without any legal justification or excuse. The plaintiffs are also claiming exemplary damages from the defendants.

The hearing of this claim was managed by pre-trial hearings and then the admission of the evidence by the filing of affidavits by the plaintiffs plus other documentary evidence. At the pre-trial hearings the State advised that it did not have any evidence to call to refute the claims of the plaintiffs, the State had no evidence to show that the raid or actions of the soldiers and police were done under any legal authority, nor was there any evidence challenging the status of the plaintiffs or the particulars of the claims of each plaintiff. I ruled that as the State was not bringing any evidence to refute the affidavit evidence of the plaintiffs there would be no need to call any of the deponents for cross-examination as it is was not appropriate to allow for speculative cross-examination. It was made clear at the pre-trial hearing that included in the evidence would be a Coronial Inquiry done by the Magistrate at Kundiawa after the raid so it was quite clear that the State had had ample time to consider the facts of the raid and the claim from this coronial inquiry.

Having ruled at the pre-trial hearings that the trial of the matter would be by way of affidavits filed and that the State had to give notice if it wished any deponents for cross-examination with details of the matter to be cross-examined, and the State having given no such notice the trial was then to be on submissions on the affidavits filed. However at the hearing the lawyer for the State asked if she could cross-examine some of the plaintiffs on the suggestion that some of the plaintiffs were not separate family groups but were closely related from the same family because there were instances of same names in the plaintiffs. I ruled that the State had had ample time to cross-check the names of the plaintiffs from official government records such as village books or village or census rolls and if the State was not submitting such records to refute the claims of any particular plaintiff then the court could not allow speculative cross-examination. And anyway it must be common knowledge that in any race or clan or tribe there would be some more common names held by a number of members.

With respect to the claims of loss and valuation I did accept submissions on how far the court should accept bare assertions of value. As most of the family claims were relatively modest I have generally found no unusual claims and most of the personal possessions claims I saw no reason to reject. However I felt that the general valuation of the village houses was far larger than the court has been open to accept in recent years. In a number of cases and where appropriate government officers have given evidence it has been established that the value of the normal village house is K500 to K600. I therefore find that I cannot now accept a value of K1,500 for the standard village bush material house and I have accordingly reduced the amount to be awarded for each village house to K700.

In some instances where a house with an iron roof or louvre windows has been claimed I have allowed for a larger amount for the value of the house. There has been a claim by Andrew Eneme for the loss of a substantial permanent house. In his claim to the coroner and in the writ before this court he claimed for K35,000 for this house. There is evidence from the District Manager at Sina Sina that the house could be worth K60,000 and there are photographs submitted of the burnt out shell of the house. On that evidence I will accept the claim of K35,000 for the house. There have also been some claims for cash lost in the burning of houses.

This court cannot accept bare assertions of such loss. First it is not prudent practice to keep large amounts of cash in one’s home and anyone who does that does so at their own risk. Also large amounts of cash suggest an income which could be liable for tax and therefore the court must require appropriate evidence of how such large amounts of cash were obtained and of compliance with the tax laws. So in a couple of instances where large amounts of cash are claimed this court cannot accept that claim without appropriate evidence to support the holding of such amounts of cash.

The coronial report was tendered as evidence before the court and I find some of the comments of the coroner of serious concern for the good government of this country. First it appears that none of the officer concerned with the raid bothered to attend at the coronial hearing, this shows a serious lack of respect from the Defence Force and the Police Force for the proper institutions of government and the Courts. This also lends support to the findings of the coroner that the whole operation of the raid may have been a private vendetta by the Defence Force because of their own incompetence in the care and security of their own weapons and could have involved a criminal conspiracy by the officers concerned including the First Defendant. The evidence before the coroner and before this court was that the raid was done to search for a lost Defence Force weapon, a weapon that appears to have been lost in Moresby or somewhere else in the country but not in Chimbu Province. This story has not been refuted by the State and as I have already noted, Captain Boko did not attend before the Coroner and nor before this Court to give his version of the events. I must therefore suggest that Captain Peter Boko should be investigated by the State and that disciplinary action should be taken against him in the Defence Force because of his criminal actions over and above his normal duty responsibility in leading this illegal raid and because of what he has cost the State. It is quite clear that he is not a fit person to be an officer in the Defence Force. Further I will not award exemplary damages against the State because I find that the State should not be liable for the personal aberrations of its servants but I will make an award of exemplary damages against Captain Peter Boko personally in the amount of K71,500 being at the rate of K500 per claimant. I find it is of serious concern that the Government has taken no action on the Coroners Report in the 3 years since it was tendered to the Department of the Attorney General.

I am satisfied on the evidence that the State is liable for the loss and destruction of property caused in this raid by Defence and Police personnel. I order Judgement in the sum of K346,821.85 against the 1st and 2nd Defendants.

I order Judgement of a further amount of K71,500.00 against the 1st Defendant Captain Peter Boko.

If the Judgements are not paid by 21 days after the taking out of the Order for Judgement then interest will run on the Judgements at 8 percent till paid.

Lawyer for the plaintiffs: S Norum.

Lawyer for the defendants: Solicitor General.