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Kints v Nukundi [2001] PGNC 88; N2113 (7 May 2001)

N2113


PAPUA NEW GUINEA


[IN THE NATIONAL COURT OF JUSTICE]


WS NO. 402 OF 1995


WAMA KINTS
-First Plaintiff-


PA WAI
-Second Plaintiff-


TAIA KOLKOP
-Third Plaintiff-


MICHEAL MAPA
for himself and on behalf of PET WAI, PAUL WAPIA, and IOKA NUI
-Fourth Plaintiff-


-V-


Senior Constable PIUS NUKUNDI

-First Defendant-


Sergeant VONOMO MAKIS

-Second Defendant-


COMMISSIONER FOR POLICE.
-Third Defendant-


THE INDEPENDENT STATE OF PAPUA NEW GUINEA

-Fourth Defendant-


Mount Hagen: Davani J

2001 : 7th May


PRACTISE AND PROCEDURE – Use of affidavit in ex-parte proceedings – Weight to be attached to affidavits – Evidence Act Ch. 40 s.35(2), s.37, s.84.


DAMAGES – Circumstances in which damages are assessed where liability is proven and where there is no other evidence to corroborate plaintiffs claims.


Papua New Guinea cases cited:

Liwame v Inspector Yansuan [1996] PNGLR 43.

Kapate Stanford & 30 Ors; Naiven Yato & 9 Ors v George Wagulo & The State.

Yange Langan & 58 Ors v The State

Het Pakena v The State & Ors

Benny Balepa v The Commissioner of Police and The State

Veronica Andale and David Kandakasi v The State

Jonathan Paraia v The State & Ors [1995] PNGLR

James G. Koimo v The State [1995] PNGLR 535

Re Conditions at Buimo Corrective Institution [1988-1989] PNGLR 266


Other cases Cited:

Halsbury 4th Edition

McGregor on Damages (Sweet & Maxwell) 13th Edn 1972 London

Aranson, Reaburn & Weinberg; "Litigation Procedure" Butterworths Second Edition

Subramainiam v Public Prosecutor ([1956] UKPC 21; 1956) WLR 965

Biggin & Co Ltd v Permanite Ltd (1951) 1 KB 422


Counsel:
P. Dowa, for the Plaintiffs


DECISION

(TRIAL)


DAVANI J.: This is a claim for damages by the Plaintiffs against the four (4) defendants, three of whom are policemen and the fourth, being the State.
The claim arose as a result of alleged destruction to property and personal injuries sustained by the Plaintiff, during an alleged police raid on 4 May 1995.


The matter came before me for hearing on both liability and quantum. The state was not represented at the hearing. According to Mr Dowa for the Plaintiff, Mr Tuva of the Solicitor General’s Office, for the Defendants could not attend the hearing but would file written submissions. No other reasons were given. I considered that to be unacceptable but proceeded, in any event, after having seen affidavit filed by Mr Dowa confirming that the State had been advised of the hearing date but could not attend. The matter proceeded ex-parte.


Facts


The Writ of Summons and Statement of Claim filed on 26 April 1995 claimed the following:


  1. That raid was allegedly conducted by the Defendants, when they raided Togobe village, destroying and looting all Plaintiffs properties worth approximately K37,000.00 and caused extensive damage to the First, Second and Third Plaintiffs properties, coffee gardens and food gardens. It is alleged that the policemen also physically assaulted the third and fourth Plaintiffs.
  2. The Plaintiffs claim that they are entitled to:

• K37, 430.06 in damages

• Punitive damages

• Compensatory damages

• General damages

• Costs

• Any other orders.


In support of their claims, each Plaintiff filed an affidavit. The State did not file any affidavits. In the Defendant’s Amended Defence filed on 13 March 1996, they deny the Plaintiff’s claim saying that any damage occasioned occurred in circumstances other than those alleged. The Defendants then ask the Court for orders that the claim should be dismissed with costs.


It is important that I discuss the background relating to the affidavit evidence before me as the Defendants claim they do not have any of the Plaintiffs affidavits in their possession.


The Plaintiffs rely on all their affidavits filed in Court which were tendered, into evidence in the absence of the Defendants. The Defendants have not filed any affidavit material.
The Defendants claim they do not have the Plaintiffs affidavits. Were these affidavits ever served on the Defendants? There is on the Court file an affidavit of service sworn by Mr Dowa on 24 September 1997 and filed on 25 September 1997 where he states that on 29 August 1997 at 11.55 am he served copies of his clients affidavits on the office of the Solicitor General. He states in that affidavit;


"2. I have on 29 August 1997 at 11.55 am served on the Solicitor General copies of our client’s affidavits sworn on 14 August 1997 by personally hand delivering same to Kisolel Kiapin, Secretary to the Solicitor General, at the Solicitor General’s Office, 2nd Floor, Central Government Building, Waigani, National Capital District".


This Court must properly consider the aspect of service of the affidavits on the State as this then determines how much weight I should give to these affidavits, considering they have not been tested under cross examination.


As discussed above, Mr Dowa has filed affidavit evidence confirming all affidavits were personally served on the Office of the Solicitor General on 29 August 1997. The question asked is, what became of these affidavits? Did they reach the Action Officer, Mr Tuva? Mr Tuva claims he has not seen them. Was there correspondence from Mr Dowa’s office to the Office of the Solicitor General confirming that the affidavits had been served? During Mr Tuva’s conversation with Mr Dowa on 7 May 2001, did they discuss the use of affidavits? Mr Dowa deposes in his affidavit of 7 May 2001, that Mr Tuva had agreed that he will not require the deponents to the affidavits for cross examination. Mr Dowa further deposed in his affidavit of 25 September 1997 that he served "his clients affidavits sworn on 14 August 1997" on the Office of the Solicitor General. Which affidavits where they?


I cannot answer any of the questions posed above as I do not have the answers. I expected to be addressed in submission on the matters raised but this did not occur. Surely, Mr Tuva could not have agreed not to cross-examine the deponents unless he was aware of their evidence. I can assume that because he did not have the Plaintiffs affidavits before him that he was not in a position to disagree. Or I can also assume that Mr Dowa had not informed Mr Tuva of the existence of these affidavits and that Mr Tuva had assumed affidavits were not relied on.


Thus I am faced with a scenario, that with very little assistance from both lawyers, I will have to make the best judgment. To avoid a situation where a party will become a victim of circumstances, I will accept that the affidavits have been served and that because they have not been subject to cross examination, to place the desired weight on them. Because the Defendants did not appear when the trial was called, I proceeded in the Defendants absence. In that situation, the Plaintiffs must prove their claim where the burden of proof is on them. (re par. 506 Halsburys 4th Edition).


I do not agree with Mr Dowa as deposed to in his affidavit of 7 May 2001 that the "evidence is not challenged and has been tendered without objection", and further, that the "... Solicitor General’s Office consented to the tendering of the affidavits". I say this because I would expect that Mr Dowa in his submission address the court on the admissibility or otherwise of the matters deposed to in the affidavits and the weight I should give to them considering the burden of proof is now on him to prove his clients claims. Furthermore, this court is given the ultimate discretion under S.35 (2) of the Evidence Act, to allow or disallow the use of an affidavit or any part of an affidavit or to attach such weight as it sees fit on the matters deposed to in the affidavit. (re Liwame –v- Inspector Yansuan [1996] PNGLR 43, pg. 46, 47). In any event, the affidavits were not tendered through the deponents, as is the accepted practice at law, then marked as exhibits, but were handed up to me. It is now for this court to exercise its discretion in relation to the use, or not, of these affidavits.


I do not know if Mr Tuva has sighted a copy of Mr Dowa’s affidavit of 7 May 2001 but bearing in mind Mr Tuva’s submissions on the affidavits, I have no doubt that this evidence will be challenged and objected to, when sighted. But as Mr Tuva has chosen not to attend the hearing, I can only rely on what is before me.


Having considered this aspect, I will now discuss the issue of liability.


Liability


Although the Defendants have filed a Defence denying the events ever occurred, they have, in their submissions proposed two alternatives - that the claim be dismissed in its entirety or that if judgment is for the Plaintiffs, that the claim should depreciate in value by 50%.


Did the raid occur and are the Defendants responsible?


The Defendants Defence pleads that any damage suffered by the Plaintiffs occurred under circumstances other than what is alleged. In other words, the Defendants say the alleged raid did not occur. For the Defendants, there is no evidence before me, either oral or written to substantiate and prove their Defence.


The Plaintiffs however, by their affidavits filed in Court, claim to reaffirm what was pleaded in the Writ of Summons and Statement of Claim and that is that a police raid was conducted by several policemen on 4 May 1995 at Togobe in the Western Highlands Province, causing destruction to food crops, houses, animals and also assaulting several of the Plaintiffs.


The Plaintiffs were not cross-examined on the contents of their affidavits so it is for me to carefully analyse the material before me. In saying this, I note also that none of the Plaintiffs have brought evidence apart from their own to confirm the events of 4 May 1995 which means their evidence is uncorroborated. Below are my reasons why I say that.


Paul Wapia

Wama Kints

Ioka Nui

Pa Wai

Taia Koldop

Michael Mapa

Pet Wai

Based on the affidavits I have just reviewed, all the Plaintiffs affirm their allegations that an incident involving the Police did occur on 4 May 1995. However, these claims are made independently of each other rather than as a group.


The Defendants submit that it is unusual for a few people to file claims of this nature especially in a situation where a whole village was raided (re Pa Wai’s affidavit). They submit this Court must dismiss these claims as they may be bogus.


Although I appreciate the State’s argument, they have not submitted evidence to show that these are bogus claims. The writ has been on foot since 1995. Since then, the State has had ample time within which to conduct investigations. However it appears since 1995, the State has not conducted investigations to establish the genuineness of these claims.


On the balance of probabilities and based on the affidavit evidence before me, I am inclined to agree that Policemen did attend at Togobe Village and that the Plaintiffs were the victims of some maltreatment by the Police. To what extent the maltreatment occurred is the subject of discussion under the next part.


Unless I am satisfied that the raid did not occur, I will not dismiss the claim. As it is and based on the evidence before me, I am satisfied that a raid did occur and that policemen were involved.
It is appropriate at this time for the Court to consider the Plaintiffs submissions on vicarious liability. In order for the state to exonerate itself from vicarious liability, the onus is on the state to produce evidence showing that the modus operandi employed by the policemen on the field would not have been or was not lawfully authorised by the state. (re Kapate Stanford and 30 others, Naiven Yato and 9 others –v- George Wagulo and the State WS 106/93, WS 107/93 24.10.96 Injia, J). In this case the onus was not dismissed by the State. On that basis, I will accept Mr Dowa’s submissions that the State is responsible for the Defendants actions, to a certain extent, which I will discuss under "Damages".


Damages


Whilst the State did not present any evidence disputing the general claim, it is still necessary for the Plaintiff to produce appropriate evidence in court to support the quantum of the claim. Before dealing with each claim, I will address the law on this aspect.


In the case of Yange Lagan & 58 Ors v The State, WS 419 of 1995, his Honour Injia J when discussing the aspect of damages said –


"... Plaintiffs must prove their damages in accordance with established principles as to onus and standard of proof and within the rules of practice and procedure prescribed in the National Court Rules. These are some well established principles as to the standard of proof of damages some of which I have already referred to recently in Jonathan Mangope Paraia v The State (N1343). As I have said recently in that case, which is also a case involving a victim of the same police raid, the onus is upon the Plaintiff to prove on the balance of probabilities, the damages ...".


In McGregor on Damages, (Sweet & Maxwell, 13th Edn, 1972, London) the author said:-


"The Plaintiff has the burden of proving both the fact and the amount of damages before he can recover substantial damages. This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a given allegation forms an essential part of a persons case, the proof of such allegations falls on him. Even if the Defendants fail to deny the allegations of damage or suffers default, the Plaintiff must still prove his loss". (p.935).


Further, As Injia J also stated in Het Pakena v The State and Ors (N1369);


"In my view, the minimum requirement in any action is for the Plaintiff himself to give admissible evidence in support of his claim... When the primary evidence of the Plaintiff is lacking, there is a serious gap in the Plaintiff’s case, all other evidence being inadmissible as being hearsay or hearsay upon hearsay".


The Plaintiffs evidence in the form of affidavits before me are that of:-


  1. Paul Wapia sworn on 14 August 1997;
  2. Wama Kints sworn on 14 August 1997;
  3. Ioka Nui sworn on 19 August 1997;
  4. Taia Koldop sworn on 14 August 1997;
  5. Pa Wai sworn on 14 August 1997;
  6. Michael Mapa sworn on 14 August 1997;
  7. Pet Wai sworn on 14 August 1997;

As stated earlier, I accepted the affidavits into evidence at the trial, only because the State was absent. However, the affidavits will be scrutinized subject to the legal principles available at law and to me.


I will deal with each claim separately. The reasoning will be the same on points of law, throughout.


Paul Waipa

He claims damages for injuries inflicted upon him by the police when they allegedly assaulted him causing injuries to his ribcage, left leg, right pointer finger, jaw and scratches to all parts of his body. Attached to his affidavit is a medical report dated 9 May 1995 signed by a Mr Joseph Mombo, the Resident Health Extension Officer, OPD of The Mount Hagen General Hospital.


Section 37 of the Evidence Act Chapter 48 is the law governing a medical practitioner’s evidence. It provides the avenue by which medical evidence may be tendered. It states:-


"37 – Evidence of scientific examination


(1) An affidavit made by a Medical Practitioner who has made a medical, pathological or other scientific examination of a thing setting out-

In distinguishing hearsay evidence from original evidence, Aranson, Reaburn and Weinberg in their text "Litigation: Evidence Procedure" Butterworths second edition at paragraph 30.02 made reference to a statement by Professor Sir Rupert Cross:-


"Express or implied assertions, other than the witness who is testifying, and assertions in documents produced to the Court when no witness is testifying, are inadmissible as evidence of the truth of that which was asserted" (pg 777).


In the case Subramaniam v Public Prosecutor [1956] UKPC 21; [1956] 1 WLR 965 the judges there held that evidence "... is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made" (pg 779).


Mr Joseph Mombo’s medical report strictly speaking, and in compliance with S.37 should be attached to his own affidavit when it will then be accepted as good evidence. The evidence in Mr Mombo’s evidence seeks to establish the truth or the nature of the injuries allegedly suffered by Mr Wapia, to then claim damages. As it is, Mr Wapia’s affidavit contains hearsay material which I will not rely on


I find Paul Wapia’s claims to be unsubstantiated and lacking in evidence. I find he has not proven his claims of –


- Assault by police;
- The injuries he allegedly suffered;
- And detention in the police cells.

I will dismiss this part of the claim.


Pet Wai


He claims damages for injuries sustained to his left shoulder, black left eye, abrasions, scratches all over his body and concussion. The medical report attached to his affidavit is that of John Nia, a medical officer with the Mount Hagen Hospital, dated 4 May 1995.


Relying on the reasoning in Subramaniam’s case, I will not accept this affidavit and report as reliable evidence.
Pet Wai has not proven his claims as required under law. I will dismiss this part of the claim.


Ioka Nui


He claims damages for injuries to his right shoulder, left ribs, head, right hand, concussion, broken nose and others. He also seeks payment of K481.00 that was allegedly taken by police.


Mr Nui’s claims are largely unsubstantiated by evidence. Dr Fred Wuir’s medical report attached to his affidavit is hearsay evidence relying on the principles enunciated earlier on. Dr Fred Wuir should have filed a separate affidavit. I cannot rely alone on Fred Wuirs statements. I find there is no evidence before me, to confirm that Mr Nui did suffer these injuries. I will dismiss this part of the claim.


Pa Wai


Mr Wai claims the loss of a grass house at K1000.00 and properties, mostly tools and spare parts all to the value of K16,255.00. On review of Mr Wai’s affidavit, I find that it contains hearsay material ie. P. T Kopal’s letter of 17 May 1995 to the Secretary, Department of Western Highlands which is attached as annexure ‘B’ to Mr Wai’s affidavit. Mr T. Kopal or Paul Akel, the District Co-Ordinator for Hagen Central should have filed affidavits or given oral testimonies.


Further to that, I find it odd that Mr Wai has managed to save his Apprenticeship Certificate, when all other materials were allegedly burnt to the ground. In-addition, if Mr Wai was able to remember the many minute details of the properties burnt or destroyed e.g "1 x oil filter Assy for B. bal R" then surely he would have had with him an inventory of some sort or some other documentation proving the existence or supposed existence of these items and their value, when they were purchased and then later gave instructions to his lawyer on those items.


I also note that the vehicle spare parts and tools claimed may not all have been in the grass house. I say this because I do not know the size of the house and how many people lived in it. I also do not know if the grass house is or was the workshop. Mr Pa Wai’s evidence that "prior to the police raid ..., I used to operate a small workshop at Togobe", is not evidence of destruction of the workshop or evidence that the grass house that was burnt was the workshop.


The Plaintiff has not proven that all the properties he claims were destroyed and the value of those properties.


On that basis, I will only award a quarter each of the total amount claimed, which I set out below and which amounts to K4313.75.


Second Plaintiff – PA WAI


Item Amount Reduced Value

* Grass House K1000.00 K 250.00

* Property Burnt

and looted by K16,255.00 K4063.75

Police -------------

Reduced award K4313.75


Taia Koldop


Mr Koldop, the third Plaintiff, claims the loss of properties, valued at K7299.00. He also claims economic loss of K200.00 per week. Firstly, did Mr Koldop own a shop? And if so, was Mr Koldop’s shop burnt to the ground?


Mr Koldop’s claims are largely unsubstantiated by evidence. I cannot rely entirely on Mr Koldop’s affidavit and accept that a shop and its items were destroyed by fire. I do not even know that. The question I should ask myself is, did Mr Koldop loose every item listed. I am inclined to say he did not. I say this for the following reasons:- e.g How can a person put a value to say "2 cushion chairs – K300.00" or "Cupboard – K80.00", when he has not informed the Court of the origin of these items, how long he has had them for, the cost of these items when they were purchased, if he purchased and if he made them, how much the building materials cost? I say this because if he can clearly remember the value of these items, surely, he should then be able to inform the Court of the matters I mentioned.


Furthermore, the copy of the License to Trade attached as an annexure to Koldop’s affidavit appears to have the date "1995" crossed out and "1994" inserted. The date of the receipt is "19 May 1995".
Without the benefit of cross-examination, I do not know why this is so.


Section 84 of the Evidence Act, Specifies when a document can be ruled inadmissible and the weight to be attached to reproductions or photocopies. Section 84 read:-


"84 Admissibility generally


(1) For the purpose of deciding whether or not a reproduction of a document is admissible under this Division as evidence of the document, a court may draw any reasonable inference from –

and may reject the reproduction, notwithstanding anything in this division, if it appears inexpedient in the interest of justice that the reproduction should be admitted in evidence. (My stress)


(2) In estimating the weight to be attached to a reproduction made admissible as evidence by this Division, regard shall be had –

I will not accept the value placed by Mr Koldop on any of these items as they are just round figures and will also not rely on the License to Trade. Because I have found that a raid did occur, and in the absence of evidence to the contrary, I find that Mr Koldop did suffer some damage, and will only award a quarter of the amount claimed under each part, a sum of K1824.75, break up of which is set out below.


In relation to Mr Koldop’s claims for economic loss, I find this aspect has not been proven. The court has decided in numerous decisions involving cases of this nature, that a party must be able to substantiate these claims by business records, balance sheets of accounts or tax returns. If a plaintiff choose to run such businesses without records, not even evidence of tax paid, then he or she runs the risk of loss when unable to substantiate the profitability of that business. (re Benny Balepa –v- The Commissioner of Police and The State N1374 Sheehan J, 22nd September, 1995).


In relation to Mr Koldop’s claims for personal injuries sustained, I find this claim is unsubstantiated. Dr Patels evidence is hearsay and is inadmissible. I refuse to make any award under this part.


My orders for reduced damages are;-


Third Plaintiff – Taia Koldop


Item Amount Reduced Value

1. 1 Bush Material House K1000.00 K 256.00

2. Property burnt and K5799.00 K1449.75

Looted by Police


3. Cash looted from the K 500.00 K 125.00

the store --------------

Reduced Award K1824.75
---------------


Wama Kints


Mr Kints claims the sum of K13,445.06 for loss of properties. He also claims economic loss of K 200.00 per week.


By the same token, this claim is largely unsubstantiated by evidence. Mr Kints has not presented any evidence to corroborate his claims that his shop was burnt to the ground. Furthermore, I do not see how I can assess a claim when all I have before me is the Plaintiff’s affidavit where he has put numbers to an item. The documentation attached to his affidavit are all quotations, they are not an assessment or value of the items destroyed, if they were destroyed at all.


Mr Kints has not described to me what these houses are like, whether they the normal traditional "highlands" huts or the modern, western, houses on posts. He has not told me the number of bedrooms in the house, if any. In relation to the kitchen, he has not told me how big it was and what was in it when it was burnt?


In relation to the claim for the items that were allegedly burnt with the bush material house and the kitchen, there is no evidence to support their existence, their value nor am I advised as to how long the Plaintiff "owned" these items.


Mr Kints claims K1,015.00 for damage to gardens, food and pets. E.g. he claims K100.00 for a dog and K22.00 each for six 50kg potato bags. I am not satisfied these items were destroyed as I do not have an independent assessment of these items e.g. from Personnel from Department of Agriculture. I will dismiss this part of the claim.


I also do not have evidence that the Plaintiffs properties to the value of K279.00 allegedly looted by Policemen was stolen.


Mr Kints claims of damage and destruction is uncorroborated in all respects.


Firstly, Mr Kints evidence of a Trade Store License is a copy of a document dated 25 December 1994 and which shows a receipt having been issued on 25 December 1995. I find it odd that a license to trade was issued on 25 December 1994 and subsequently a year later on 25 December 1995, a receipt was issued. This is the same situation as in Taia Koldop’s claim. A copy of the receipt shows a date "19/05/95" but which was ruled through, to then write in its place "25/12/95". There may be an explanation for this but I have not been addressed on this, either by evidence or in submissions. Therefore, I will not rely on this document (s.84 of the Evidence Act).


The quotations attached to Mr Kints affidavits are all dated May and October 1995 and are from several companies. Relying on Subramaniam’s case, these quotations are all hearsay material and therefore inadmissible. In any event, I must have exact evidence of the items lost e.g. the Trade Store License, Income Tax Returns, Banking Activity as to the monthly expenditure of substantial cash payment for stock and evidence from the person who constructed trade store regarding expenditure on materials and labour etc (re Veronica Andale & David Kandakasi v. The State (N1369) 1995; Injia J) before I place any value on the amounts claimed.


In relation to the loss of the Trade Store, I only have Mr Kints evidence. There is no other independent evidence or assessment of the loss of a trade store. In Veronica Andale & D. Kandakasi v. The State, an independent valuer provided an assessment of the properties damaged or lost. In this case, I do not have that benefit. I only have Wama Kints claims/evidence before me. I am inclined to rule that the Plaintiff did not loose a trade store. However, in view of the fact that the affidavits are before me with no other evidence to discredit them, I find he is entitled to some damages. In Mangope Paraia v. The State & Ors N1343 [1995], his honour Injia J said that once the Plaintiff has proven that she has lost a village type trade store, she is entitled to damages; she cannot be allowed to go without a remedy. I am unable to do the best I can [Biggin v. Permanite] 1 KB 4224) as Mr Kints has not even gone over the first hurdle and that is to prove that the trade store was indeed damaged. Therefore, on the basis of the above discussions, I can only award a quarter of the amount claimed under each part, which are:-


Items Amount Reduced value

1. Bush Material House K1,200.00 K 300.00

2. Bush Material Kitchen K 450 .00 K 112.50

3. Items burnt (with bush K2592.50 K 648.13

Material House)

4. Items burnt with Kitchen K 438.60 K 109.65

5. Damage to garden food K1015.00 K 253.75

and pets

6. Damage to Trade Store K7469.00 K1867.25

7. Property looted by

Policemen during raid K 279.00 K 69.75

---------------

Reduced Award K3361.03

---------------


I refuse Mr Kints claims of economic loss as he has not proven this aspect. I say this relying on Benny Balepa (Supra) and Veronica Andale and D. Kandakasi (Supra).


Punitive Damage


Apart from General Damages, the Plaintiff claims punitive damage. If the Plaintiffs were awarded damages for the alleged burning down of houses and general destruction of properties, then the Courts should not again award compensatory or punitive damage as that would amount to double damages (re Veronica Andale & David Kandakasi) (supra) and James Koimo v. The State N1322 31/05/95 Injia J).


Exemplary Damages


Exemplary damages are criminal, vindictive or punitive in nature and such an award is discretionary (re Toglai Apa and other Plaintiffs –v- The State [1995] PNGLR 43, Sheehan, J). In this case, although the policemen are named as defendants, there is no evidence before me that these policemen are responsible for the alleged destruction and assaults. The general liability of the State in tort is set out in s.1 of the Wrongs (Miscellaneous Provisions) Act Ch 297. However, should the State also be vicariously liable for exemplary damages, considering its nature. In James G. Koimo –v- The State [1995] PNGLR 535, Injia J, relying on the Reconditions at Buimo Corrective Institution [1988-1989] PNGLR 266, When discussing exemplary damages, said;


"The State must place sufficient evidence before the court to satisfy the court that the actions were required or justified by law or, where the action taken was in pursuance of a discretion conferred by law, that the action was reasonably necessary or justified in the circumstances of a particular situation. The burden is a heavy one...."


"1. The Plaintiff bears the evidentiary burden of establishing a prima facie case of proving the infringement of the constitutional right.


  1. The Standard of proof is on the balance of probabilities. In cases where actions of policemen are involved, the plaintiff merely has to produce some credible evidence (my stress) of the infringement of that constitutional right and where exemplary damages are sought, that the actions of the policemen were "oppressive, arbitrary or unconstitutional" and that a punitive award of damages is justified.
  2. The onus is on the government, as an institution, to show why the actions of its officers were justified or required by law".

. . .


There is no evidence before me from the State that the policemen did not act in an oppressive and arbitrary manner thereby not infringing the Plaintiffs constitutional rights as provided under s.58 of the Constitution.


My view and as held by Injia, J in Koimo (supra) is that the amount to be awarded must be relative to the nature and scale of the operation and the extent and destruction of the loss.


I will therefore order a nominal amount of K200.00 to be paid by the First and Second Defendants to the First, Second and Third Plaintiffs.


Conclusion


I order judgement in the amount of K10,299.53, the break up of which is set out hereunder:-


Claimant Reduced Exemplary Total

Award Damage


Pa Wai K4,313.75 K 200.00 K4,513.75

Taia Koldop K1,824.75 K 200.00 K2,224.75

Wama Kints K3,361.03 K 200.00 K3,561.03


The Plaintiffs are awarded interest on the judgment pursuant to the Judicial Proceedings (Interest on Debts and Damages Act) Chapter 52 at the rate of 8% from the date of the cause of action in August 1990 until the date of judgment. The same rate shall apply from the date of judgment until final payment.


I also order that the Defendant pay the Plaintiffs costs of the proceedings, to be taxed if not agreed.
_____________________________________________________________________
Lawyer for the Plaintiffs : Paulus Dowa Lawyers

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