Aure v Boko [1995] PGNC 75; N1346 (11 August 1995)

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The State - 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.

WOODS, J. The plaintiffs are all villagers from Gunagi in the Sine Sine 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 the 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 by 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. Having considered the details of each claim I award damages for loss and destruction of property as follows.

No.	NAME	DAMAGES	INTEREST	TOTAL
1.	AIMON AURE	K 935.00	K 96.11	K1,031.11
2.	AURE MOBANE	K2,012.00	K 206.82	K2,218.82
3.	AURE BIRE	K1,637.00	K 168.27	K1,805.27
4.	ANDREW KONIA	K1,895.00	K 194.80	K2,089.80
5.	ANDREW IREME	K40,552.50	K4,168.57	K44,721.07
6.	AURE WI	K1,316.00	K 135.27	K1,451.27
7.	APO BOMAI TEMAI	K4,340.00	K 446.12	K4,786.12
8.	BA MOGOMANE	K4,450.00	K 457.43	K4,907.43
9.	BEN KERAI	K 765.00	K 78.63	K 843.63
10.	BENABE KOMA	K 770.00	K 79.15	K 849.15
11.	BENNY GOIYE	K 900.00	K 92.50	K 992.50
12.	BERE KUIBA	K4,346.00	K 446.74	K4,792.74
13.	BOI URIGENE	K1,159.00	K 119.14	K1,278.14
14.	BRAULE ANTON	K3,462.00	K 355.81	K3,817.87
15.	BRE KORE	K1,665.00	K 171.15	K1,836.15
16.	BRE POLI	K1,866.00	K 191.81	K2,057.81
17.	BRE WAI	K1,087.00	K 111.73	K1,198.73
18.	BRIGE BAMERE	K1,481.00	K 152.23	K1,633.23
19.	DABERE UI	K 400.00	K 41.11	K 441.11
20.	DABERE KAPIA	K1,175.00	K 120.78	K1,295.78
21.	DABRE KUIGABA	K1,112.00	K 114.30	K1,226.30
22.	DENEVE K. KOBE	K1,200.00	K 123.35	K1,323.35
23.	DOMINIC MAIMA	K5,720.00	K 587.98	K6,307.98
24	GABE AURE	K 965.00	K 99.20	K1,064.20
25.	GABE KAU	K1,176.00	K 120.88	K1,296.88
26.	GABE KERAI	K2,333.00	K 239.81	K2,572.81
27.	GABE KUA	K 865.00	K 88.91	K 953.91
28.	GAIMA KIA	K 700.00	K 71.95	K 771.95
29.	GORA PORAKAUWA	K1,650.00	K 169.61	K1,819.61
30.	GORE WAMIL	K 821.00	K 84.39	K 905.39

No.	NAME	DAMAGES	INTEREST	TOTAL
31.	GUERE KALIPE	K 755.00	K 77.60	K 832.60
32.	GUNAN KAUPA	K4,719.50	K 485.13	K5,204.63
33.	HENRY BRE	K2,387.00	K 245.37	K2,632.37
34	INEME TIMOTHY	K 915.00	K 94.05	K1,009.05
35.	JAMES AUWALA	K1,629.00	K 167.45	K1,796.45
36.	JAMES MAIMA	K1,796.00	K 184.61	K1,980.61
37.	JOHN NINKAMA	K5,769.00	K 593.02	K6,362.02
38.	JOHN WAMIL	K3,795.63	K 390.16	K4,185.79
39.	JONAH SINE	K1,200.00	K 123.35	K1,323.35
40.	KAL BRE	K 782.00	K 80.38	K 862.38
41.	KIMAGI GRAMBAR	K 949.00	K 97.55	K1,046.55
42.	KAMIN KUIWA	K3,000.00	K 308.38	K3,308.38
43.	KAUBA MAUKA	K 785.00	K 80.69	K 865.69
44.	KAUBA ANDREW	K1,619.00	K 166.42	K1,785.42
45.	KAUPA BENABE	K1,565.00	K 160.87	K1,725.87
46.	KAUPA GUNA	K1,140.00	K 117.18	K1,257.18
47.	KELAGA NIME	K1,106.00	K 113.69	K1,219.69
48.	KELAGU SINE	K 750.00	K 77.09	K 827.09
49.	KERA POI	K 850.00	K 87.37	K 937.37
50.	KERAI AURE	K5,044.00	K 518.49	K5,562.49
51.	KIA YOKOBUS	K5,639.00	K 579.65	K6,218.65
52.	KIAGE MUGALE	K1,524.00	K 156.65	K1,680.65
53.	KOGERE MAN	K1,404.00	K 144.32	K1,548.32
54.	KOMA KILA	K2,022.00	K 207.85	K2,229.85
55.	KOMA MAU	K1,409.00	K 144.83	K1,553.83
56	KOMA MOBANA	K4,113.00	K 422.79	K4,535.79
57.	KOMA TOM	K3,470.00	K 356.69	K3,826.69
58.	KONIA IGNATIUS	K 763.00	K 78.43	K 841.43
59.	KONIA MATIAS	K 700.00	K 71.95	K 771.95
60.	KONIA RAPHAEL	K1,234.00	K 126.84	K1,360.84
61.	KORAI SINE	K3,200.00	K 328.94	K3,528.94
62.	KORE GORE	K1,350.00	K 138.77	K1,488.77
63.	KUA KUIWA	K1,399.00	K 143.80	K1,542.80
64.	KUA KUNNERYAL	K2,394.00	K 246.09	K2,640.09
65.	KUA SINE	K2,404.00	K 247.11	K2,651.11
66.	KUA WAI	K1,382.00	K 142.06	K1,524.06
67.	KUIBA IRE	K1,490.00	K 153.16	K1,643.16
68.	KUIKE KOMA	K6,966.00	K 716.06	K7,682.06
69.	KUIKE PORAKAUWA	K 880.00	K 90.45	K 970.45
70.	KUL BENABE	K 812.00	K 83.46	K 895.46
71.	KUL KRUAL	K1,666.00	K 171.25	K1,837.25
72.	KUN KAL	K 835.00	K 85.83	K 920.83
73.	KUN NEMA	K1,406.00	K 144.52	K1,550.52
74.	KURI ANNA	K 843.00	K 86.65	K 929.65
75.	KURIA BIRIGE	K1,450.00	K 149.05	K1,599.05

No.	NAME	DAMAGES	INTEREST	TOTAL
76.	KWIWA KOMA	K 960.00	K 98.68	K1,058.68
77.	LEV I KERAI	K1,493.00	K 153.47	K1,646.47
78.	LUCAS GABE	K2,694.00	K 276.92	K2,970.92
79.	LUCAS GABE for church.	K5,700.00	K 585.92	K6,285.92
80.	MAIMA MAU	K1,940.00	K 199.42	K2,139.42
81.	MAIMA P. NINKAMA	K 700.00	K 71.95	K 771.95
82.	MARGARET K. WAMIL	K2,342.00	K 240.74	K2,582.74
83.	MARIA INBRE	K2,610.00	K 268.29	K2,878.29
84.	MARIME MAUKU	K 855.00	K 87.88	K 942.88
85.	MATHIAS BURAKAWWA	K1,015.00	K 104.33	K1,119.33
86.	MAU KAMEN	K1,341.00	K 137.84	K1,478.84
87.	MAU KUA	K4,488.00	K 461.34	K4,949.34
88.	MAU KUMAN	K1,595.00	K 163.95	K1,758.95
89.	MAU MARKUS	K1,010.00	K 103.82	K1,113.82
90.	MAU NIME	K1,975.00	K 203.00	K2,178.00
91.	MAWE WAI	K1,217.50	K 125.15	K1,342.65
92.	MIANBI NIBABE	K1,700.00	K 174.75	K1,874.75
93.	MICHAEL KAMIN	K 976.00	K 100.32	K1,076.32
94.	MICHAEL MOBARE	K1,744.00	K 179.27	K1,923.27
95.	MICHAEL UBA	K3,218.00	K 330.79	K3,548.79
96.	MOA TOBE	K 905.00	K 93.02	K 998.02
97.	MOGEREMA WAI	K2,000.00	K 205.58	K2,205.58
98.	MOL SIMINA	K1,512.00	K 155.42	K1,667.42
99.	MOSES KAUBA	K5,119.00	K 526.20	K5,645.20
100.	MUALE SINE	K3,946.00	K 405.62	K4,351.62
101.	MUGALE KUA	K 900.00	K 92.51	K 992.51
102.	NEBARE DON	K 720.00	K 74.00	K 794.00
103.	NIBARE WIKE	K 912.00	K 93.74	K1,005.74
104.	NIME KOGERE	K 30.00	K 3.08	K 33.08
105.	NIME KOMA	K2,115.00	K 217.41	K2,332.41
106.	NIMA KUA	K 795.00	K 81.72	K 876.72
107.	NIME MAU	K1,280.00	K 131.57	K1,411.57
108.	NIME THOMAS	K1,120.00	K 115.12	K1,235.12
109.	NINKAMA LUCAS	K 780.00	K 80.17	K 860.17
110.	NUABE WIKE	K 775.00	K 79.66	K 854.66
111.	NUL PALUS	K1,190.00	K 122.32	K1,312.32
112.	PAPA AU	K2,650.00	K 272.40	K2,922.40
113.	PETER HENRY	K4,710.60	K 484.21	K5,194.81
114.	PETER NIME	K2,825.00	K 290.39	K3,115.39
115.	PHILIP KAMTAI	K,3,859.00	K 396.68	K4,255.69
116.	POMAM GOIYE	K2,125.50	K 218.48	K2,343.98
117.	PORE KAUWA	K1,960.00	K 201.47	K2,161.47
118.	ROBERT MAIMA	K 170.00	K 17.47	K 187.47
119.	SIMAKUS KALIBE	K5,500.00	K 565.36	K6,065.36
120.	SINE AURE	K 842.00	K 86.55	K 928.55

No.	NAME	DAMAGES	INTEREST	TOTAL
121.	SINE KAMIN	K 826.10	K 84.90	K 911.00
122.	SINE KAPIA	K 893.00	K 91.79	K 984.79
123.	STEVEN KUN	K2,866.00	K 294.60	K3,160.60
124.	TEMAI AURE	K4,377.50	K 449.98	K4,827.48
125.	TENE KUIKE	K 795.00	K 81.72	K 876.72
126.	THOMAS WAI	K1,350.00	K 138.77	K1,488.77
127.	TUNA KIA	K 775.00	K 79.66	K 854.66
128.	UGENE WAMIN	K1,365.00	K 140.31	K1,505.31
129.	NULGINE KORA	K6,943.50	K 713.75	K7,657.25
130.	URIGINE KOMANE	K2,301.00	K 236.53	K2,537.53
131.	URIGINE KUIPA	K1,000.00	K 102.79	K1,102.79
132.	WAI JOESEPH	K 970.00	K 99.71	K1,069.71
133.	WAI KAUPA	K2,000.00	K 205.58	K2,205.58
134	WAI PORE KAUWA	K1,033.00	K 106.18	K1,139.18
135.	WAI WAI	K 793.00	K 81.51	K 874.51
136.	WALAI MOGIA	K1,669.00	K 171.56	K1,840.56
137.	WAMIL WAI	K1,545.00	K 158.81	K1,703.81
138.	WAMIL AWI	K1,271.00	K 130.65	K1,401.65
139.	WEMIN KOGERE	K4,571.00	K 469.87	K5,040.87
140.	WEMIN WAINE	K 800.00	K 82.23	K 882.23
141.	WILLIE GUN	K1,076.00	K 110.60	K1,186.60
142.	WORA KU	K 764.00	K 78.53	K 842.53
143.	WI WAI	K2,129.00	K 218.84	K2,347.84

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

National Court of Papua New Guinea

Aure v Boko [1995] PGNC 75; N1346 (11 August 1995)