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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 796 OF 2005
BETWEEN:
BENNY NEPAL POLE AND OTHERS
Plaintiffs
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant
Waigani: Gavara-Nanu, J
2007: 13 & 14 September
2008: 26 September
DAMAGES - Police raids – Six policemen allegedly involved in the raids - Enemy tribes assisting in raids – Enemy tribesmen coming from five villages – Destruction caused widespread – Reasonable to say that much if not all of the actual destruction caused by enemy tribesmen – Quantum of damages.
DAMAGES - Evidence – Need to produce credible evidence in support of claims for damages – Claims for loss of properties, including houses, coffee trees, pigs – Credible supporting evidence from family members and people from plaintiffs’ villages or government officials required – Plaintiffs’ affidavit evidence alone insufficient for substantial damages claimed- No direct evidence to prove actual police involvement in the raids and destruction of properties – Minimum damages sufficient for the plaintiffs.
DAMAGES - Exemplary damages – Detention and raids illegal and unauthorized – Claims for Exemplary damages refused.
COSTS – Enemy tribesmen from five village involved in raids and widespread destruction of properties – Discretion of the
Court – Policemen and enemy tribesmen involved in raids not joined in the suit – Claims for costs by the plaintiffs refused
– Each party to bear their own costs.
Case cited.
Abel Tomba v The State SC518.
Andrew Namuesh v Paul Ofoi & Ors [1996] PNGLR 211
Application by Kunzi Waso under s. 57 of the Constitution [1996] PNGL 218
Dambe v Peri [1993] PNGLR 4
David Wari Kofwei v Augustine Siviri & Ors [1983] PNGLR 449
John Salamon v The State & Ors (1994) PNGLR 265
Jonathan Mangope Paraia v Inspector Jacob Yansuan & Others (1995) N1343.
MVIT v James Pupune [1993] PNGLR 370
MVIT v John Etape [1995] PNGLR 214
Peter Wanis v Fred Sikiot & The State (01/08/96) N1350
PNGBC v Jeff Tole SC694
Tabie Mathais Koim & Ors v The State N1737.
Toglai Apa v The State [1995] PNGLR 43
Yange Lagan & Others v The State (1995) N1369
Council
L. Kari, for the plaintiffs
A. Chillion, for the defendant
26 September, 2008
1. GAVARA-NANU J: This matter was tried for assessment of damages on 14 September, 2007, default judgment having been entered against the defendant on 17 November, 2006.
2. In their Statement of Claim the plaintiffs claim that six members of the Police Force including Constable Timothy Osa without any search warrants, warrants of arrest or providing any reason or sufficient reason, searched the plaintiffs and detained them at Pangia rural lockup then later at Ialibu Police Station in the Southern Highlands Province without laying charges.
3. The plaintiffs also claim that Constable Osa and the other five policemen verbally advised the plaintiffs at the time of their detention that they were kept in custody for being allegedly involved in sorcery killing, although there was no formal complaint made against them warranting their detention. Further, the plaintiffs claim that the policemen including Constable Osa destroyed their houses and other properties including food gardens and cash crops.
4. There are six plaintiffs. Each plaintiff complains of being unlawfully searched and arrested. They also claim breach of their constitutional rights; namely, freedom of movement, freedom from harsh and oppressive treatment and their right to protection of the law under s.37 of the Constitution.
5. On the basis of same allegations, the plaintiffs also claim damages for malicious prosecution.
6. The plaintiffs claim that as a result of the unlawful actions of the policemen they suffered shame, embarrassment and humiliation. The plaintiffs also claim that the policemen killed their pigs.
7. The plaintiffs claim that the defendant is liable for the actions of the policemen under Wrongs (Miscellaneous Provisions) Act, chapter 279, as the policemen were on duty when they committed the above wrongs.
8. It is not in dispute that the plaintiffs have given the appropriate notice under s. 5 of the Claims By and Against The State Act, 1996.
9. Each of the six plaintiffs have in the Statement of Claim claimed K500, 000.00 in general damages, K150, 000.00 in exemplary damages, special damages, interest and costs. However, these amounts have been drastically reduced in the respective supporting affidavits sworn by the plaintiffs and the submissions made on their behalf by their lawyer at the trial for assessment of damages.
10. In respect of the properties damaged, the plaintiffs have each produced photographs which are annexed to their respective affidavits purportedly showing their damaged properties.
11. Directions were given by the Court for the matter to be tried by affidavits only. In compliance with those directions the plaintiffs filed and served their affidavits on the defendant. The affidavits served on the defendant were sworn by each of the plaintiffs namely; Nepal Pole, Paul Pindipe, Robin Temo, Timbu Doa, Rupu Kaima and Lapua Were. The defendant has not filed any affidavits in reply. Thus at the time of trial for assessment of damages, the lawyer for the defendant argued the defendant’s case on the basis of the affidavits filed by the plaintiffs.
12. There is no dispute that the raids were conducted into the villages belonging to the plaintiffs. The plaintiffs have also each conceded that the members of their enemy tribes related to the deceased who accused the plaintiffs of killing the deceased through sorcery also joined the police in the raids and destroyed their properties, which the plaintiffs say included their houses, food gardens, coffee gardens and pigs. The enemy tribesmen came from five villages.
13. At the trial, the plaintiffs through their counsel summarized their respective claims.
The summary of claims for each plaintiff as submitted by their counsel is as follows:-
A. Benny Nepol Pole
Under this head, the plaintiff claims K50, 000.00 for being subjected to inhuman treatment after being falsely accused of being a sorcerer responsible for the death of a deceased and being taken to Ialibu Police Station, where he was allegedly imprisoned for a day. The plaintiff claims that he was embarrassed when he was treated as a sorcerer responsible for the death of the deceased and for being arrested in public and locked up in the police cells, which he says was unconstitutional. The plaintiff also claims that he was falsely imprisoned.
Under this head, the plaintiff claims K80,000.00. The plaintiff says the principal offender in this case, namely Constable Osa was identified, who with other five policemen destroyed food and coffee gardens and houses with their contents, did unlawful search on him and unlawfully arrested and detained him and falsely imprisoned him.
Under this head, the plaintiff claims K95, 500.00. This amount is claimed for the loss of crops including coffee trees, taros and, bananas. He also claims for the loss of three permanent houses, three bush material houses, pigs, cooking utensils and clothes. In support of these claims, the plaintiff has produced photographs of damages purportedly done to his crops, houses and other properties. The plaintiff has also annexed as Annexure "A" loss of 200 coffee trees which according to the estimates given in the Annexure of a coffee tree with a life span of 20 years would have earned him K160, 000.00.
The itemized special damages by plaintiff’s own affidavit puts the amount claimed for special damages at K95, 500.00. Thus the total amount claimed in damages is K225, 500.00. This includes K50, 000.00 for general damages and K 80,000.00 for exemplary damages.
B. Paul Pindipi
Under this head, the plaintiff also claims K50, 000.00 for being subjected to inhuman treatment and for being treated as a sorcerer responsible for the death of a deceased and for being taken to Ialibu Police Station where he says he was imprisoned for a day. He also claims that he was embarrassed when he was arrested in public and locked up in the police cells which the plaintiff says were unconstitutional. The plaintiff also claims damages for false imprisonment.
The plaintiff also claims K80, 000.00 under this head, arguing that the principal offender, Constable Osa was identified whose actions led to his unlawful arrest and detention and damages caused to his properties which he says warrants his claim for exemplary damages.
The plaintiff claims K91, 820.00 under this head. The claims are for the loss of crops such as coffee trees, taro, bananas, one permanent house, three bush material houses, pigs, cooking utensils and personal belonging such as clothes. The plaintiff says he lost 250 coffee trees value of which has been attached to his affidavit as Annexure "A". Mr. Kari submitted that the life span of a coffee tree according to this Annexure being 20 years, the future economic loss from 250 coffee trees destroyed was K200, 000.00.
The itemized special damages in plaintiff’s own affidavit puts the claim for special damages at K91, 820.00. Thus together with K50, 000.00 claimed for general damages and K 80, 000.00 for exemplary damages, the total amount claimed in damages is K 221, 820.00.
C. Robin Temo
The plaintiff claims K50, 000.00 for inhuman treatment, false imprisonment and for being falsely accused of being a sorcerer who was responsible for the death of the deceased and for being embarrassed in public by being arrested and locked up in Ialibu Police Station without a warrant of arrest in front of the members of the public which he claims was in breach of his constitutional rights.
This plaintiff claims K80, 000.00 under this head, arguing that the main offender, Constable Osa had been identified whose actions together with other five policemen resulted in the destruction of his properties and his unlawful arrest and detention.
The plaintiff claims K46, 200.00 under this head for the loss of coffee trees, taro, bananas, a permanent house, 3 bush material houses, pigs and cooking utensils and clothes. The plaintiff has attached photographs of 300 coffee trees allegedly destroyed in the raid, to his affidavit. Again Mr. Kari submitted that given the life span of a coffee tree at 20 years, had the 300 coffee trees not been destroyed, the plaintiff would have earned K240, 000.00 over the 20 year period.
The itemized special damages in the plaintiff’s own affidavit puts the amount claimed for special damages at K46, 200.00. Thus the total amount claimed in damages together with K50, 000.00 for general damages and K80, 000.00 for exemplary damages is K176, 200.00.
D. Tembu Doa.
This plaintiff also claims K50, 000.00 for inhuman treatment and false imprisonment and for breach of his constitutional rights by being falsely imprisoned for a day at Ialibu Police Station. He also claims this amount in damages for being embarrassed by being arrested in public over the allegation of him being a sorcerer who was responsible for the death of the deceased.
The plaintiff claims K80, 000.00, claiming that the principal offender, Constable Osa was identified and his unlawful actions as well as those of his five colleagues led to his unlawful detention and false imprisonment. He says the amount claimed is justified.
iii. Special damages (Value of items lost and for future economic loss)
Under this head the plaintiff claims K62, 200.00 for the loss of his coffee trees, taro, bananas, a permanent house, three bush material houses, pigs, cooking utensils, clothes and other personal belongings. The plaintiff has produced photographs in support of his claim for damages done to his properties including 150 coffee trees. Mr. Kari submitted that given the normal life span of a coffee tree at 20 years, 150 coffee trees destroyed would have earned the plaintiff K120,000.00. He therefore says, amount claimed of K62, 200.00 is reasonable.
The itemized special damages in the plaintiffs own affidavit puts the amount claimed for special damages at K 62,200.00. Thus the total amount claimed in damages is K192, 200.00. This amount is made up of K62, 200.00 for special damages, K50, 000.00 claimed for general damages and K80, 000.00 claimed for exemplary damages.
Again, this plaintiff claims K50, 000.00 for inhuman treatment and for being falsely accused as a sorcerer who was responsible for the death of the deceased and for being unlawfully imprisoned for a day at Ialibu Police Station. He says he was embarrassed by being arrested in public and locked up in the police cells which he says was in breach of his constitutional rights. He also claims he was falsely imprisoned.
The plaintiff claims K80, 000.00, under this head arguing that Constable Osa whose actions led to his illegal arrest and detention and destruction of his properties was identified together with five other policemen. He therefore says that this amount is warranted to compensate him.
iii. Special damages (Value of items lost and for future economic loss)
The plaintiff claims K70, 000.00, for the loss of coffee trees, taro, bananas, a permanent house, three bush material houses, pigs, cooking utensils and other personal belongings such as clothes.
The plaintiff has produced photographs of the alleged destructions. He says he lost 200 coffee trees which, given the life span of a coffee tree of 20 years, would have earned him K160, 000.00 in those 20 years had those coffee trees not been destroyed
The itemized special damages in the plaintiff’s own affidavit puts the amount claimed for special damages at K 70, 000.00. Thus the total amount claimed in damages together with K50, 000.00 for general damages and K80, 000.00 for exemplary damages is K 200, 000.00.
G. Lapua Were
This plaintiff claims K50, 000.00 for inhuman treatment, false imprisonment and for being embarrassed by being accused of being a sorcerer who was responsible for the death of the deceased and by being arrested and locked up in Ialibu Police Station for a day in front of the members of the public. He claims damages for breach of his constitutional rights.
ii. Exemplary damages
The plaintiff claims K80,000.00 under this head, claiming that the main offender, Constable Osa was identified for his unlawful actions. He says Constable Osa’s actions as well as actions of five other policemen warrant this amount to compensate him.
iii. Special damages (Value of items lost and for future economic loss)
The plaintiff claims K20, 800.00 under this head for the loss of crops including coffee frees, taro, bananas, a permanent house, three bush material houses, cooking utensils and other personal belongings such as clothes.
The plaintiff says he lost 200 coffee trees and says that given the life span of a coffee tree at 20 years, the 200 coffee trees would have earned him K160,000.00 in 20 years.
The itemized special damages in the plaintiff’s own affidavit puts the amount claimed for special damages at K20, 800.00. Thus together with the claim for K50,000.00 for general damages and K80, 000.00 for exemplary damages, the plaintiff’s total claim for damages is K150, 800.00.
It is to be noted that K50, 000.00 for general damages and K80, 000.00 for exemplary damages claimed by the plaintiffs are taken from the extract of submissions filed for each of the plaintiffs by Mr. Kari.
Background facts
15. Background facts giving rise to all these claims are sufficiently given in the affidavit sworn by Benny Nepol Pole on 31 January, 2007. Mr Pole deposes that on 12 June, 2004, a person by the name of Kumbe Angopa Kelowa from a village called Evapini in Kagua, Southern Highlands Province died after suffering from a serious illness related to asthma.
16. The relatives of the deceased claimed that the plaintiffs and their relatives or tribesmen were responsible for the death through sorcery. On or about 25 June, 2004, the relatives of the deceased went to Pangia Police Station and brought with them a policeman identified as Mathew Tiripi who was a member of CID to investigate the deceased’s relatives’ claim that the plaintiffs and their tribesmen killed the deceased through sorcery.
17. On or about 27 June, 2004, the policeman Mathew Tiripi conducted investigations into the allegation made against the plaintiffs and their tribesmen, however no evidence was found which could sustain the claims made by the deceased’s relatives. The Investigating Officer then recommended to both tribes that they should resolve the matter by shaking hands and make peace amongst themselves.
18. On or about 2 July, 2004, another relative of the deceased namely Topa Niripo went again to Pangia Police Station and brought another Police Officer identified as Timothy Osa. The plaintiffs claim that this policeman spent a night at Pawai village where he was welcomed with a huge party by the relatives of the deceased.
19. On 23 August, 2004 the plaintiffs claim that about six policemen including Constable Timothy Osa, based at Ialibu Police Station went to Mamuane village in a ten seater Toyota Land Cruiser and caused destruction to their properties which included, food gardens, coffee gardens, houses and pigs. Mr. Pole claims that the six policemen were assisted by the relatives of the deceased to cause those damages.
Itemized claims for special damages for each of the plaintiffs in their respective affidavits.
20. Mr. Pole claims in his affidavit that he lost 200 coffee trees at K40.00 per tree thus the total claim of K8, 000.00 for coffee trees; 300 taros at K8.00 each, thus the amount claimed for taros is K2, 400.00; 180 bananas claimed at K20.00 each, thus the amount claimed for bananas is K3, 600.00; 4 pigs at K1, 000.00 each, thus amount claimed is K4, 000.00; 6 pigs at K750.00, thus the amount claimed is K4, 500.00. The total amount claimed for pigs is K8, 500.00, 1 permanent house for K60, 000.00; 3 bush material houses for K500.00. He also claims K5, 000.00 for cooking and eating utensils and K6, 500.00 for clothes and beddings.
21. The K40.00 per coffee tree claim is based on the standard valuation made by the Coffee Industry Corporation. This valuation is dated 2 November, 2005 which is Annexure "A" to this plaintiff’s affidavit. He has also produced seven photographs of a damaged house, banana and coffee gardens. The photographs are annexed as Annexures "B1 to B7". Annexure "B1" is a photo of a house which appears to be made of permanent materials, i.e fibro and timber. There is no indication as to when the photographs were taken. There is some indication of destruction done to the walls and the structure of the house but the house itself looks quite old and run down. The other photograph shows the close up view of the same house. There is no mention of who owns the house and what type of damages the plaintiff is claiming apart from the obvious damages to the walls and timber structure. The other photographs show the destruction purportedly done to a coffee garden. The damage however is confined to a small area. No descriptions are given as to what is shown in each of these photographs. The photographs mainly show a damaged old house, coffee garden and some bananas next to the house.
22. Mr. Pole therefore makes a total claim of K95, 500.00 in special damages. As I alluded to earlier with his claim for K50, 000.00 for general damages and K80, 000.00 for exemplary damages, the total amount claimed in damages is K225, 000.00.
23. The next plaintiff is Paul Pindipi. He is a single man aged about 20 years. In his affidavit, he is claiming for the destruction of 250 coffee trees at K40.00 each. Again, based on the standard valuation done by the Coffee Industry Corporation Limited of a coffee tree. The amount claimed is K10, 000.00; 100 taros at K8.00 each, thus the amount claimed is K800.00; 60 banana trees at K20.00 each, thus the amount claimed is K120.00; 8 pigs for K3, 400.00; 1 permanent house for K60, 000.00; 2 bush material houses for K1, 000.00; food garden for K7, 500.00; cooking utensils for K4, 000.00; clothes and beddings for K5, 000.00. This plaintiff puts his total loss in special damages at K91,820.00. With his respective claims for K50, 000.00 for general damages and K80, 000.00 for exemplary damages, the total amount claimed in damages is K221. 820.00.
24. This plaintiff has produced five photographs of properties allegedly damaged, viz; 1 permanent house and 2 bush material houses and a coffee garden. The photographs are annexed as Annexures "B1 to B5" to his affidavit. The first photograph ‘B1’ appears to show an area where there had been a building that was burnt down. But whether the house was a bush material house or a permanent house is not certain as the photograph is inconclusive. All that is shown in the photograph is the bare ground with some kind of a single semi permanent material left over from a burnt house. Photograph "B2" shows bananas destroyed in a garden. Photograph "B3" appears to show a destroyed coffee garden. Photographs "B4" and "B5" shows the same images.
25. The next plaintiff is Robin Temo. In his affidavit, he claims that he lost 300 coffee trees; 250 taros; 200 bananas; Coffee trees are claimed at K40.00 each, again based on Coffee Industry Corporation Limited Valuation; taros are claimed at K8.00 each, bananas at K20.00 each; 1 permanent house at K60, 000.00; 2 bush material houses at K500.00 each; 4 pigs at K2, 100; 4 piglets at K100 each and household goods. The total amount claimed by this plaintiff from his affidavit is K46, 200.00. Thus together with his claims for K130, 000.00 for general and exemplary damages, his total claim in damages is K176, 200.00.
26. This plaintiff has also produced photographs of what he says are his properties destroyed by the police. The photographs are annexed as Annexures "B1 to B6" to his affidavit which was sworn on 31 January, 2007. Annexure "B1" appears to be a photo of new crops growing in a freshly cultivated garden. I see no sign of any destruction done to the garden or crops in the photograph. Photograph "B2" is a photo of bananas destroyed from their trunks. Photograph "B3" is a photo of the remains of a house destroyed by fire. There are corrugated irons on the ground at the background. There is a bush material house which appears to have been partly burnt by fire. Photographs "B4", "B5" and "B6" show pictures of destroyed coffee trees in a small area.
27. Next plaintiff is Tembu Doa. In his affidavit, he is claiming for 150 coffee trees. He is claiming K40.00 for every coffee tree destroyed; 200 taros at K8.00; 350 banana trees at K20.00 each; 6 pigs at K2, 000.00; 1 permanent house at K30, 000.00; 1 bush material house at K500.00. He is also claiming for household goods including clothes and beddings. His total claim for special damages is K62, 200.00.
28. This plaintiff also produced seven photographs of what he claims are destroyed houses and food gardens. The photographs are Annexures "B1" to "B7" to his affidavit. Annexure "B1" is a photo of banana trees chopped from the trunks. Again destructions done to coffee and banana gardens are in small areas. Annexure "B2" is the reverse view of Annexure "B1" showing some destruction to banana trees and a semi permanent house. Photographs "B4", "B5" and "B6" show what the plaintiff claims to be coffee trees which were chopped down. The total claim in damages with K130,000.00 for general and exemplary damages is K192, 200.00.
29. Next plaintiff is Pupu Kaima. He is claiming for 200 coffee trees at K40.00 per coffee tree; 250 taros at K8.00 each; 150 bananas at K20.00 each; 1 semi permanent house at K30, 000.00; 2 bush material houses at K500.00 each and 5 pigs at K3,500.00. He is also claiming for household items, garden food and clothes. He puts his total claim at K70, 000.00 for special damages.
30. This plaintiff also produced eight photographs which are marked as Annexures "B1 to B8" to his affidavit. Annexure "B1" is a photo of partially burnt house made of bush materials. There also appears to be remains of a burnt house, however there is no clear evidence of whether it was a permanent house or a bush material house. It looks more like a bush material house. Annexure "B2" is a photo of a few banana trees which were cut down. Annexure "B3" is also a photo of bananas which were destroyed, Annexure "B4" is also a photo of some more bananas cut down; Annexures "B5" to "B8" are photographs of what appear to be destroyed coffee gardens. Again it is noted that these photographs show a limited area in which these destructions were allegedly done. His claim for K 70,000.00 in special damages together with K130, 000.00 claimed for general and exemplary damages puts his total claim for damages at K200, 000.00.
31. The last plaintiff is Lapua Were. He is claiming for 200 coffee trees at K40.00 per coffee tree; 200 taros at K8.00 each; 150 bananas at K20.00 each; 2 pigs at K1500.00 each; various garden food; household items and 2 bush material houses at K500.00 each. He puts his claim in his affidavit at K20,800.00 for special damages.
32. This plaintiff has also produced photographs which are Annexures "B1 to B7" to his affidavit. Annexure "B1" is a photo of what appears to be destroyed bananas. Annexure "B2" shows the same type of destruction. Annexure "B3" shows a semi permanent run down house which is partially damaged. Annexures "B4" to "B7" appear to be photographs of destroyed coffee trees in coffee gardens again within small areas. The total claim by this plaintiff for special damages is K20, 000.00. Thus with his claims for general and exemplary damages at K130, 000.00, the grand total claimed in damages is K150,800.00.
33. It should be noted that I have considered all the claims made by the plaintiffs because I consider that the claims have been sufficiently pleaded in the Statement of Claim.
Defendant’s case
34. Mr. Chillian argued that claims for loss of coffee trees should not be entertained by the Court because the plaintiffs failed to clearly plead how many coffee trees they have each lost. He argued that in paragraph 8 of the Statement of Claim, the plaintiffs only pleaded that they lost coffee trees, pigs, houses, bananas and taros, they failed to plead particulars of those claims. This he argued is contrary to O 8 r 29 of the National Court Rules which provides:-
"A party pleading shall give the necessary particulars of any claim, defence or other matter pleaded by him."
35. It was argued that what the plaintiffs pleaded is too general which is bad pleading, thus the claims should be dismissed. In support of this contention, Mr Chillian cited MVIT v. John Etape [1995] PNGLR 214, MVIT V. James Pupune [1993] PNGLR 370 and Papua New Guinea Banking Corporation v. Jeff Tole SC 694.
36. It was argued that the plaintiffs could have made up stories or fabricated their affidavit evidence and made up figures in regard to their respective claims. It was submitted that there was no evidence as to the size of gardens, the types of houses that were destroyed, the number of bedrooms they had, the contents of the houses and how old the houses were. It was argued that these should be supported by independent evidence such as people from plaintiffs’ villages including family members and government officers who should have done proper assessment of damages suffered by each plaintiff. In support of these arguments, Mr Chillian cited Yange Lagan & Others v. The State (1995) N1369, which is an authority for the proposition that the plaintiffs have a duty to prove their claims with credible evidence.
37. Mr. Chillian argued that amounts claimed by each of the plaintiffs in damages and their respective affidavit evidence in support of those claims are self serving which have been exaggerated with highly inflated figures.
38. It was argued that each claim should be reduced by 50% for lack of credible evidence. Mr. Chillian relied upon Jonathan Mangope Paraia v. Inspector Jacob Yansuan & Others (1995) N1343.
39. In regard to the claims for pigs, Mr Chillian argued that there is no corroborative and credible evidence at all to support these claims, thus the claims should be dismissed. He argued that at least family members and other villagers should have sworn affidavits to support these claims. In the absence of such a corroborative evidence these claims should be totally dismissed.
40. As to the plaintiffs’ claims for loss of houses, in respect of Benny Nepol Pole, Mr. Chillian argued that photographs ‘B1’ and ‘B2’ annexed to his affidavit show that there was a house standing which was not totally burnt down which as I said earlier was a run down house made of timber, corrugated iron and fibro. In that sense it was argued that, it can be said that the house was made of western materials, however, there is no evidence as to how old the house is. Furthermore, there is no independent evidence as to the estimated cost of this house, eg evidence from the person who built the house or a government officer who could have looked at the house and given its estimated value. The defence argued that because of lack of credible corroborative evidence to support the plaintiff’s claim, the plaintiff should only be awarded K1, 000.00 for the cost of repair to the house.
41. As to the claim for two bush material houses, the defence argued that there is no evidence in the photographs of any bush material houses been burnt down. It was therefore argued that this claim should be totally dismissed.
42. As to the claims by Paul Pindipi, Mr Chillian argued that the claims for one permanent house at K60,000.00 and K500.00 each for two bush material houses; photograph ‘B1’ annexed to the plaintiff’s affidavit does not clearly show whether there was a permanent house which may have been burnt down. There is a bush material house still standing. If there was a house that got burnt down, there is no evidence in regard to the kinds of material that were used to build the house and cost of materials and labour. There is no independent evidence such as from a carpenter who built it or a Government Officer regarding the cost of the house. It was argued that because of lack of corroborative evidence, the amount of K12, 000.00 should be sufficient for the loss. In support of this argument Mr. Chillian cited Peter Wanis v. Fred Sikiot & The State (01/08/96) N1350, which was a similar type of case, where Woods, J awarded K12,000.00. As to the claim for the two bush material houses at K500.00 each the defence argued that there is no evidence of bush material houses been burnt down from photograph "B2". The photograph only shows that there is a bush material house still standing which appears to be partly burnt. For this, the defendant offers K200.00 for the cost of repairs to the house.
43. In respect of the claims by Robin Temo for the loss of one permanent house for K60,000.00 and two bush material houses for K500.00 each, Mr Chillian submitted that photograph "B3" which purports to be a photograph of destroyed houses does not clearly show whether the houses burnt down were permanent houses or bush material houses. One bush material house which appears to be partly burnt is still standing. Again, there is no independent evidence of the type of house that was burnt down; such as by a competent Government Officer or a carpenter who built the house or a person or persons from the plaintiff’s village or family members. Such evidence would give fair assessment of the cost of the house. For these reasons, it was submitted that K12,000.00 should be sufficient to compensate for the loss. Again, the case of Peter Wanis v. Fred Sikiot & The State (supra) is relied upon by the defendant. With regard to the claim for two bush material houses, it was submitted that there is no evidence of that from photograph "B3". Thus the defendant submitted that K500.00 should be sufficient for this claim.
44. As to the claims by Timbu Doa for the loss of one permanent house at K30, 000.00 and one bush material house at K500.00, it was submitted that photograph "B2" annexed to the plaintiff’s affidavit does not show whether there was a house destroyed by fire and whether it was a semi permanent house as claimed by the plaintiff. Mr. Chillian submitted that according to the photograph a house is still standing. The defence has offered K1,000.00 for this claim for the repair of the house that is still standing. As regards the claim for one bush material house the defence argued that there is no evidence in photograph "B2" of a house been burnt down. There is evidence that one house is still standing, thus an amount of K200.00 for the cost of repair is offered by the defendant.
45. As to the claim by Pupu Kaima for the loss of one semi permanent house at K30,000.00 and two bush material houses at K500.00 each, it was submitted that photograph "B1" annexed to the plaintiff’s affidavit does not clearly show whether the house was a semi permanent house or a bush material house. It appears from the photograph that the house was a bush material house. Furthermore, there is no independent evidence to support the claim, thus the defendant has offered K500.00 for this claim. This should compensate for the repair works on a bush material house shown in the photograph which appears to have been partly burnt. As to the claim for the loss of two bush material houses, the defence submitted that the claim should be dismissed because there is no credible evidence to support the claim.
46. As to the claims by Lapua Were for the loss of a permanent house at K60,000.00 and two bush material houses at K500.00 each, it was submitted that photograph "B3" annexed to the plaintiff’s affidavit shows a partly damaged and run down house which is still standing. According to photograph "B3", the house is made of timber, fibro and iron roofing, but is very old. There is no evidence of a permanent house and two bush material houses been burnt down. If there was such destruction, it should be supported by an independent evidence. Because of lack of corroborative evidence the State is offering K12,000.00 for the loss of a permanent house and K500.00 for each of the two bush material houses. Again reliance is placed on Peter Wanis v. Fred Sikiot & The State (supra).
47. As to the claims by the respective plaintiffs for the loss of household goods Mr. Chillian argued that there is no credible evidence by each plaintiff of such loss been suffered. It was therefore submitted that K500.00 should be a fair compensation to every plaintiff.
48. As to the claims for the loss of garden food by each plaintiff an amount of K200.00 is offered for each of the plaintiffs. Again it was argued that there is no corroborative evidence such as by family members or village councillors or Government officers to support these claims.
49. As to claims for general and exemplary damages by each plaintiff, first in respect of exemplary damages, it was submitted that no damages should be awarded because the raids on the villages were not authorized. Furthermore, the other policemen who were allegedly involved in the raid have not been found and all the policemen should have been joined as defendants in these proceedings. Secondly, exemplary damages are punitive in nature designed to punish the actual wrongdoer and in this case the wrong that was done through the raids was not authorized by the State not even by the Senior Police Officers based in Ialibu Police Station. The State therefore should not be held liable for the unauthorized actions of the six policemen. In support of this argument the defendant relied upon Toglai Apa v. The State [1995] PNGLR 43, a judgment by Sheehan J. in which his Honour said exemplary damages or awarding of the exemplary damages are punitive in nature and they should be awarded to punish the actual wrongdoer, which in this case were the policemen and deceased’s relatives who conducted the unauthorized raids on the villages. The State also relied upon Dambe v. Peri [1993] PNGLR 4, where the trial judge Amet, J (as he then was) took the same approach as Sheehan, J in Toglai Apa v. The State (supra). In essence, Amet, J in Dambe v. Peri (supra) was more direct on the point and said the State should not be held liable for the unlawful actions of a police officer.
50. In this case, there are also two letters which are annexed to the affidavit of Benny Nepol Pole filed on 26th May, 2006 which show that the raids conducted by Constable Timothy Osa and five other policemen which led to the destruction of the properties belonging to the plaintiffs were unauthorized and the policemen concerned were to face disciplinary actions. It is for this reason that it was argued by Mr Chillian that the State should not be held liable for the unauthorized criminal actions of those policemen. Furthermore, there were relatives of the deceased from five villages who took part in the raids and destruction of properties belonging to the plaintiffs.
51. As to the claim for breach of constitutional rights by each plaintiff, it was submitted that the State has already compensated the plaintiffs for various damages and to pay more compensation for this claim would be duplicating the damages already awarded to them. In support of this argument, Mr. Chillian relied upon Tabie Mathais Koim & Ors v. The State N1737. In that case, in Injia, J (as he then was), refused to award damages for breach of constitutional rights saying awards made for other claims were sufficient, thus to award further compensation for breach of constitutional rights would duplicate the awards already made.
52. In this case though, the plaintiffs were detained at Ialibu Police Station for a whole day, the defendant has therefore offered K1,000.00 for each plaintiff. The defendant made this offer after considering cases such as David Wari Kofwei v Augustine Siviri & Ors [1983] PNGLR 449, where K2,500.00 was awarded for breach of constitutional rights. In Andrew Namuesh v. Paul Ofoi & Ors [1996] PNGLR 211 policemen entered the premises of the plaintiff illegally, for which an amount of K1,000.00 was awarded to the plaintiff for breach of his constitutional rights. In the case of an Application by Kunzi Waso under s. 57 of the Constitution [1996] PNGL 218, the plaintiffs who were unlawfully assaulted and detained by CIS Officers were each awarded K1, 000.00 in damages for breach of their constitutional rights.
53. In this case because there was no police brutality, or unlawful assault, the defendant has offered K1, 000.00 to each plaintiff.
Reasons for decision
54. A number of things need to be said at this juncture. First, liability by reason of a default judgment entered against the defendant only relates to matters which were properly pleaded by the plaintiffs in their Statement of Claim, see PNGBC v. Jeff Tole (supra). Secondly, evidence is only given by the plaintiffs themselves of damages allegedly suffered by them. In that regard evidence contained in their respective affidavits can be regarded as self serving where there are no independent supporting and credible evidence. Thirdly, raids conducted on the plaintiffs’ villages were unauthorized as evidenced by the two letters written by Ialibu Police Station Commander addressed to Constable Osa who together with five other policemen conducted the raids which resulted in the destruction of houses and other properties belonging to the plaintiffs including food gardens. Fourthly, the raids were done with the help of the enemy tribesmen of the deceased from five villages, thus the raids could not be only done by the policemen alone, they were done together with tribal enemies of the plaintiffs. This is an inference open for me to draw.
55. I will now address special damage claims by each plaintiff. I will address the claims in the order they appear in the submission filed by their counsel. First in order is Benny Nepol Pole, second is Paul Indipi, third is Robin Temo, fourth is Timbu Doa, fifth is Pupu Kaima and sixth is Lapu Were.
56. I should state that relevant evidence as to claims by each plaintiff for special damages has already been discussed, I will therefore not repeat the evidence. However, there is one matter which I would like to mention and that is the claims made as special damages are general damages in nature, I will therefore consider them under general damages.
57. One of the matters that should also be noted is that the plaintiffs had at the trial for assessment of damages drastically reduced the amounts they have claimed for damages in their Statement of Claim, that is, each of the plaintiffs claimed K500, 000.00 for general damages and K150, 000.00 for exemplary damages in the Statement of Claim but these claims have been reduced drastically at the trial. This in my view indicates that the plaintiffs have conceded that the amounts they have claimed in the Statement of Claim are excessive.
1. Claims by Benny Nepol Pole
58. I start with the claim for the loss of one permanent house at K60, 000.00 for which there is only one photograph produced. There is a house surrounded by a banana garden and bush. The house is run down and is made of permanent materials, namely fibro walling and timber structure including flooring. Some damage appears to have been done to the fibro walls and the structure of the house. For this, I consider that claim of K60,000.00 is far too excessive. I consider that I should award an amount for the cost of repair to the house. For that, I award K3, 000.00. As to the claim for the three bush material houses at K500.00 each, there is no evidence of such houses been burnt down from the photograph. For instance, there is no evidence of burnt out posts to show that there were once houses standing before been burnt down. I therefore dismiss this claim entirely. The other photographs show what appear to be destroyed coffee trees. As I said earlier, the photographs cover a very small area. I will therefore allow for 50 coffee trees at K40.00 per tree thus I award K2, 000.00 for this claim. As to the claim for bananas, there are some bananas destroyed. I will allow a global amount of K400.00 for bananas. For taros, there is no credible evidence of taros been destroyed in the garden. I therefore dismiss the claim for taros. For household goods, I will allow K250.00 there being no evidence of the types of items destroyed. This award covers clothes and kitchen utensils.
59. For damages claimed for breach of constitutional rights the plaintiffs have corroborated each other in that they have said that they were kept in custody for one whole day at Ialibu Police Station without warrants of arrest. I will award K1, 500.00 for this claim.
60. In regard to claims for exemplary damages, I do not consider any amount should be awarded to the plaintiff for the reason that the raids were unauthorized, not even by the senior officers of Ialibu Police Station. There is evidence that the raids conducted on the plaintiffs’ villages were illegal and unauthorised I therefore dismiss this claim entirely.
61. In regard to the claim for the loss of pigs, I dismiss the claim for lack of supporting independent evidence. I am of the firm view that, for claims like this, family members of the plaintiff or people from the plaintiff’s village should have sworn supporting affidavits in support of the claim.
62. Total damages awarded to this plaintiff therefore is, K7, 140.00. I award interest at 8% from the date of the writ which is 31st May, 2005 to today (26.09.08). That is a period of 3 years 3 months 5 days. For this period, I award interest at K1, 900.60.
63. The total amount awarded to this plaintiff in damages and interest therefore is K9, 040.60.
2. Claims by Paul Pindipi.
64. There appears to be evidence of a house been burnt down. The State has offered K12, 000.00. I also consider K60, 000.00 to be far too excessive. There is no supporting evidence apart from the evidence given by the plaintiff. I will in the circumstances award K5, 000.00 to the plaintiff for the loss of a permanent house. In regard to the claim for K500.00 each for the two bush material houses, there is evidence of only one bush material house in the photographs which is still standing but partly damaged. The State has offered K200.00 for the cost of repairing the house. I will award this amount. There is no evidence of two bush material houses been burnt down. There is evidence of some banana trees been chopped down for which I would be inclined to allow for 30 bananas at K20.00 each, thus I award K600.00 for bananas. In regard to the claim for taros, there is no evidence of taros been destroyed from the photographs. I therefore dismiss this claim. In respect of the claim for the coffee trees there are photographs showing that some destruction was done to some coffee trees. Again because the photographs are confined to a small area and there being no corroborative or supporting evidence from independent sources, I will allow for 50 coffee trees at K40.00 per tree, for which I will award K2, 000.00. For the claim for household goods, I will award K200.00. Again, for this claim, there is no credible evidence of what type of items were lost.
65. For the plaintiff’s claim for general damages, I am satisfied upon the evidence provided by all the plaintiffs that the plaintiff was unlawfully detained at Ialibu Police Station by the six policemen. Thus for this plaintiff, I also award K1,500.00.
66. I decline to award exemplary damages because the raids were unauthorised as they were conducted by the policemen without authority from their Senior Officers. The raids were also done with the assistance of the tribesmen of the deceased from five villages. In my view the actual wrongdoers should be held responsible for this claim if the plaintiffs want to pursue this claim. I accept Mr Chillian’s contention that the State should not be held liable for exemplary damages which are designed to punish the actual wrongdoers. See, Toglai Apa v. The State (supra) and Dambe v. Peri (supra).
67. In regard to the claim for the loss of pigs, I dismiss the claim entirely, because of lack of supporting independent evidence. Family members or people from the plaintiff’s village should have sworn affidavits to support this claim.
68. The total amount awarded in damages is K9,500.00.
69. I award interest at 8% from the date of writ which is 31st May, 2005 today (26.09.08). That is a period of 3 years 3 months 5 days. For this period, I award interest at K2,528.78.
70. Total amount awarded to this plaintiff in damages and interest is K12, 028.78.
3. Claims by Robin Temo
71. For the claim for the loss of one permanent house at K60,000.00 and two bush material houses at K500.00 each, the relevant photograph produced by the plaintiff, i.e. ‘B3’ is inconclusive. However there is evidence that a building was destroyed but there is no evidence to show whether that house was a permanent house or a bush material house. The photograph is inconclusive on this. The State has offered K12, 000.00 but in my view, amount of K500.00 is sufficient, there being no credible independent evidence to support the claim. There is also no evidence whether the house was big or small, old or new. There is no evidence from the photograph of other houses been burnt down. There is evidence that two bush material houses are still standing. There appears to be some coffee trees destroyed as shown in the other photographs. However, the area of destruction is small. I am prepared to allow for 50 coffee trees at K40 per coffee tree thus awarding K2,000.00 for this claim. As to the claim for bananas, there is evidence of bananas been chopped down but this is also confined to a small area. I will therefore allow for 20 bananas at K20 each, for which I award K400.00. There is also evidence of what appears to be a new garden which is newly planted. There is no evidence of any destruction done to the garden. I therefore dismiss the claim for taros. For the claim for household goods, I will award K200.00.
72. For breach of constitutional rights I am satisfied from evidence by all the plaintiffs that they were kept in custody without warrant of arrest at Ialibu Police Station. I will award K1,500.00 for this claim. I will not award any amount for exemplary damages for the reasons I have already given in respect of the other two plaintiffs. The total amount awarded is K4,600.00.
73. In regard to the claim for the loss of pigs, I dismiss the claim for lack of supporting independent evidence. Again family members of the plaintiff or other people from his village should have provided supporting evidence.
74. I award interest at 8% calculated from the date of the writ which is 31st May, 2005 to today (26.09.08). That is a period of 3 years 3 months 3 weeks 5 days. For this period, I award interest at K1,224.52.
75. Therefore the total amount awarded to the plaintiff in damages and interest is K5,824.52.
4 Timbu Doa
76. In regard to this plaintiff’s claim for one semi permanent house at K30,000.00 and one bush material house at K500.00, photographs produced by the plaintiff show that a house is still standing. There appears to be some destruction done to the house. The house is made of permanent materials. It only needs repair work. For this, I will award K3,000.00. There is a bush material house still standing but does appear to have suffered some major fire damage. Again it would need only repair work. For this, I will award K200.00. There appears to be extensive damage done to a banana garden. For that I am prepared to allow for 300 bananas at K20.00 each thus awarding K6,000.00 for bananas. For the claim for the loss of coffee trees, there are photographs showing coffee trees been destroyed. I will allow for 100 coffee trees at K40.00 each thus awarding K4,000.00 for coffee trees. I will not allow any amount for the taros, there being no evidence of destruction to taros in the photographs. For household goods, including clothing and cooking utensils, I will award K200.00 as there is no evidence of the type of things lost.
77. I decline to award any amount for the loss of pigs for lack of independent supporting evidence. As I said, family members of the plaintiff or his village people should have sworn supporting affidavits for this claim.
78. I also award K1, 500.00 for breach of constitutional rights as there is supporting evidence by other plaintiffs that they, including the plaintiff were kept in custody by the police without warrant of arrest for a day at Ialibu Police Station.
79. I do not award any amount for exemplary damages for reasons I have already given in respect of the other plaintiffs.
80. Therefore the total amount awarded to this plaintiff is K14, 900.00. I award interest at 8% from the date of the writ which is 31st May, 2005 to today’s date (26.09.08). That is a period of 3 years 3 months 3 weeks 5 days. For this period, I calculate the interest at K3,966.23.
81. Therefore the total amount awarded to the plaintiff in damages and interest is K18,866.23.
5. Pupu Kaima
82. For this plaintiffs claim for loss of a semi permanent house at K30,000.00 and two bush material houses, there is evidence of partial destruction to one of the houses which is still standing. It only needs repairing. For this I will award K1,500.00, because it is a bush material house. As to the semi permanent house allegedly destroyed by fire, there is no credible independent evidence to support this claim. However, there appears to be remains of a destroyed house. I will therefore award K500.00. There is evidence of bananas chopped down as shown in two of the photographs. I will therefore allow for 30 bananas at K20.00 each thus awarding K600.00 for bananas. For the claim for coffee trees, there is evidence of coffee trees been destroyed in a small area. For this, I will allow for 150 coffee trees at K40.00 each thus awarding K6000.00. I will not award any amount for taros because there is no evidence in support of the claim. For the claim for household goods I award K500, this would cover cooking utensils, clothing and other personal belongings.
83. For breach of constitutional rights, I award K1, 500 to this plaintiff on the basis that there is supporting evidence by all the plaintiffs that they, including the plaintiff were illegally kept in custody at Ialibu Police Station for a day.
84. I dismiss the claim for loss of pigs for lack of supporting independent evidence. I dismiss the claim for reasons I have given in respect of the other plaintiffs.
85. I also dismiss the claim for exemplary damages for reasons already given in respect of the other plaintiffs’ claims.
86. The total amount awarded is K10, 600.00.
87. I award interest at 8% from the date of the writ which is 31st May, 2005 to today (26.09.08). That is a period of 3 years 3 months 3 weeks 5 days. For this period, I calculate the interest at K2, 821.62.
88. The total amount awarded in damages and interest therefore is K13, 421.62.
6. Claims by Lapua Were
89. This plaintiff claims for loss of two bush material houses at K500.00 each. Photograph "B3" annexed to his affidavit does not show whether the two bush material houses were indeed burnt down. The photographs only show the destruction done to bananas and coffee trees. There is a semi permanent house which is still standing with some apparent damage but there is no claim made for it. The claims are made only for the loss of two bush material houses. I therefore dismiss this claim. In regard to the claim for bananas, I am satisfied that there were bananas destroyed. The plaintiff is claiming for loss of 150 bananas at K20.00 each. There appears to be extensive damages done to the garden but the bananas are of different sizes. For this claim, I award the amount for 100 bananas at K20 each which is K2, 000.00. There is no evidence of taros been destroyed as the gardens appear to be banana gardens. I therefore dismiss the claim for taros. I am satisfied that there is evidence of coffee trees been destroyed but in a small area. I therefore award damages for 50 coffee trees at K40 each which amounts to K2,000.00.
90. For household goods, again because there is no evidence of houses been destroyed whether bush material or permanent, I dismiss this claim.
91. In regard to the claim for pigs, there is no supporting independent evidence before me. In that regard, I adopt the reasons I gave in respect of other plaintiffs, when dismissing their claims for loss of pigs. I therefore dismiss the claim.
92. As to the claim for exemplary damages, I decline to award any amount for the reasons already given in respect of the other plaintiffs.
93. As to the claim for breach of constitutional rights, I am satisfied that there is corroborative evidence from other plaintiffs that all the plaintiffs, including this plaintiff were unlawfully detained and kept in custody at Ialibu Police Station for a day. I therefore ward K1,500.00 for this claim.
94. Therefore the total amount awarded to this plaintiff is K5, 500.00.
95. I award interest at 8% from the date of the writ which is 31st May, 2005 to today (26.09.08). That is a period of 3 years 3 months 3 weeks 5 days. For this period, I award interest at K1, 464.07.
96. Therefore the total amount awarded in damages and interest to this plaintiff is K6,964.07.
97. I consider the amounts awarded to each plaintiff in damages to be reasonable in the circumstances of this case.
98. I am aware that the parties negotiated to settle these claims and a Deed of Release was signed for K150, 000.00 to each plaintiff, which the National Executive Council refused to honour. I am not bound by those negotiations. I am here deciding the case on its own merits.
99. I have not awarded any amounts to the plaintiffs in damages for false imprisonment because in my view the damages awarded for breach of constitutional rights resulting from their unlawful arrests and detention at Ialibu Police Station is sufficient to compensate for false imprisonment. Any additional award in damages would in my opinion be duplication of the damages already awarded to them. See Tabie Mathais Koim & Ors v. The State (supra). In any case, the plaintiffs have not pleaded false imprisonment in their Statement of Claim thus, they cannot claim for it. See, PNGBC v. Jeff Tole (supra).
100. There were only six policemen involved in the raids and it is fair and reasonable for me to hold that much of the damages each of the plaintiffs are making claims for were caused by the deceased’s tribesmen because the policemen numbering only six could not possibly caused such extensive damage. None of the deceased’s tribesmen who took part in those raids has been joined as defendants in these proceedings neither were the six policemen. Furthermore, there is no direct evidence that the six policemen were actually involved in the raids and destruction of properties. The general damages awarded here are only for the reason that the six policemen assisted and abetted in the raids. From the evidence before me, that is the highest it can be put against them. The plaintiff still had the duty to prove their claims with credible evidence, without which no damages can be awarded, notwithstanding the fact that there has been a default judgment ordered against the defendant. See Peter Wanis v. Fred Sekiot and the State (supra); John Salamon v. The State & Ors (1994) PNGLR 265.
101. As to the plaintiffs’ claims for exemplary damages, the raids were unauthorised. Therefore the raids were not done in the execution of the lawful duties of the six policemen. The State cannot be vicariously liable to for those unlawful actions of the six policemen because they acted outside of their lawful duties. See, Abel Tomba v. The State SC 518.
102. In regard to costs, it is discretionary and it is my view that because of the involvement of the deceased’s tribesmen in these raids, their involvement in those raids must have been far greater than the six policemen. They came from five villages. The plaintiffs’ affidavits also do not affirmatively establish that the policemen were directly involved in the raids. They have positively identified only one policemen, namely Constable Timothy Osa but even the evidence provided against Constable Timothy Osa is too remote and weak as to his direct involvement in the actual destruction of properties. The damages awarded as I said are therefore only on the basis that the policemen aided and abetted in the raids. It is in my view unfair for the State to pay costs when much of the destruction would have been done by the relatives of the deceased, needless to say that the raids were unauthorised. In those instances, it is unfair for the State to pay any more than the damages ordered in favour of the plaintiffs.
103. In the result, I order that each party pay their own costs.
104. Orders accordingly.
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