Aisoli v Sai and Wapigan [1997] PGNC 85; N1583 (17 July 1997)

Unreported National Court Decisions

N1583

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL 317 OF 1996
LUKAS AISOLI - APPELLANT
V
SUNNY SAI & EVIO WAPIGAN - RESPONDENTS

Kimbe

Woods J
11 July 1997
17 July 1997

TORT - damage to property - destruction of property in payback for a murder - murderer has been convicted and imprisoned - no right in relatives of victims to take law into their own hands and destroy property.

Counsel

L Mongko for the appellant.

17 July 1997

WOODS J: This is an appeal ag an oran order of the District Court at Kimbe on the 30th August 1996 dismissing a claim for damages.

The appellant had issued a complaint in the District Court in Kimbe claiming damage the looting and destructiouction of his house property on his Block at Section 20 Block 1573 Galai No 2 in West New Britain.

The appellant claimed that following an incident when he had a fight during which he caused the death of a relative of the defendants for which he was arrested and charged and convicted and sentenced to 5 years imprisonment for murder, the defendants had been responsible for the looting and destruction of his property at the Galai Block even though there had been some compensation paid for the killing.

To support his claim the appellant gave evidence of having a house which he had built for a cost of over K5,000 and of the loss of property while he was in gaol. Other witnesses gave evidence of being present when the defendants and others looted and destroyed the house. A witness Heoniga attestedested to being present when Evio and others wnd damaged the house. She refers to amage and dend dend destruction being done some years after the killing incident and it wasuse there was some disagreeagreement or failure over the compensation being paid for the killing. Hedence is not really chal challenged or contradicted. Another wi Soanibi Francisancis Jana gives evidence of seeing the defendants and others destroying thse.

This evidence of the destruction and looting of g of the house is not really challenged by any other evidence. It is sugg that this may hmay have been done because of problems with the paying of the compensation for the killing. Evio Wapigan d beinually illy involved in the destruction of the property. The deft Sunny Sai Sai giai gives no evidence.

In his evidthe appellant does refer to some agreement he may have had with one of the defendants over over the killing of the deceased and that s paid for that.

Thep>The magistrate does find that there was proof of damage to the property and it was open to the Court to assess the loss. However the magistrate make makes reference to the agreement to kill and because of that suggests that it would be against public policy to give the appellant damages when he had acted under an illegal agreement to kill. The magistrhus dismisses tses the claim.

The grounds of appeal are that the magistrate erred in dismissing the claim when there was cient evidence to support the claim, and also erred in that he confused the previous customustomary compensation which had settled the previous dispute and then made some reference to that customary compensation having to be re-considered.

I have trouble with understanding why the magistrate felt he could not assess compensation for the what is clearly unlawful destruction of property. The magistrate refe the cohe conspiracy to kill but the appellant has been charged and convicted of the criminal offence of murder and has paid a penalty for that. And also he orline have apve apparently paid some compensation for the civil wrong of the killing. This then t disqualify himy him from claiming for any separate civil claim he may have. There c no authorn the lawe law foaw for the defendants to take the law into their own hands and destroy or loot the appellants property and the cannot sanction such unlawful behaviour once it has found that that there is proof of dama damage to property and therefore a power in the Court to assess the damages, which is the way that magistrate found in his reasons. If there was still some disagreement over the payment of compensation that does not authorise persons to break the law and go on a rampage. Surely the pupolicld be fobe for the courts to insist that any attempt to take the law into your own hann hands should be heavily dealt with.&#160this case there is no action under the criminal law for wilful damage to property but the athe appellant was quite entitled to take any appropriate civil action.

The magistrate has agreed that there has been some illegal damage to property, then it must follow that damages must follow otherwise the courts would be sanctioning the actions of people who take the law into their own hands.

I find that the magistrate has erred in finding that he should not consider assessing the damages on the grounds of public policy. However ws the claim and wand what is the evidence of the loss. The appe seems to have onle only proceeded on the claim for the damage to the house building. However tis no really inde independent assessment of the value of thperty. So what can the court do then. The appelappellant has attested to the value as he sees it. is partly sued by witnessenesses who confirmnfirm there was a house building on the Block which was destroyed. In the circumstaof Papua Npua New Guinfeel incumbent on then the Court to make some assessment howeveowever it must be a conservative assessment in the circumstances based on igures that have been mentioned in the evidence. I fe I feel thre that an a an assessment of K4,500 would not be out of proportion to the state of the evidence.

I uphold the appeal, quash the orders of the magistrate, and in the interest of justicethe respect for law and ordd order I will assess the loss at K4,500 and order the respondents to pay the K4,500 damages to the appellant. I will make no order inte interest. I order that thpondents pats pay the appellants costs.

And the lesson from this is that when one person breaks the law that is not a licence nor does it authorise others to also break the law or take aw into their own hands.