Kol v Independent State of Papua New Guinea [2010] PGNC 20; N3912 (10 March 2010)

N3912

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 216 OF 1996

BETWEEN

BOB KOL
Plaintiff

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Mount Hagen: Makail, J
2008: 06th June &
2010: 10th March

TORT - Liability - Unlawful police raid - Destruction of properties - Whether police conducted raid - Identification of - Whether police acted within the scope of employment - Vicarious liability - Wrongs (Miscellaneous Provisions) Act, Ch 297 - Section 1.

DAMAGES - Assessment of - General damages for property destroyed and looted - Personal items, chattels, cash and store goods - Damages for violation of constitutional rights - Freedom from inhuman treatment - Deprivation of liberty - Freedom from arbitrary search and entry - Freedom from unjust deprivation of property - Proof of - Constitution - Sections 42, 44, 53, 57 & 58.

Cases cited in this judgment:

Papua New Guinean cases cited:
Mali Pyalia & Ors -v- Chief Inspector Leo Kabilo & The State (2003) N2492
Desmond Huaimbukie & Ors -v- James Baugen & The State (2004) N2589
Peter Wanis -v- Fred Sikiot & The State (1995) N1350
Eriare Lanyat & Ors -v- George Wagulo & The State [1997] PNGLR 253 Obed Lalip & 20 Ors -v- Fred Sikiot & The State (1996) N1457
Jonathan Mangope Paraia -v- The State (1995) N1343
Aimon Aure & Ors -v- The State [1996] PNGLR 85; (1995) N1346
Abel Tomba -v- The State (1997) SC518
Robert Taropen & Ors -v- The State: WS No 1166 of 2004 (Unnumbered & Unreported Judgment of 08th March 2010)
Nelson Pawa -v- Linus Yumbun & The State (2009) N3784
Kawi Yawi -v- Torepa Nenga, Anton Sinawai & The State (2002) N2209 James Gunambo & Anor -v- Sergeant Thomas John Upaiga & The State: WS No 1321 of 2002 (Unnumbered & Unreported Judgment of 25th January 2010)

Overseas cases cited:
Livingstone -v- Rawyards (1880) 5 App cases 25
Bonham - Carter -v- Hyden Park Hotel (1948) 64 TLR 177
Butler -v- Egg & Egg Pulp Marketing Board [1966] HCA 38; (1996) 114 CLR 185
Albazero (1977) AC 774

Counsel:

Mr P Kopunye, for the Plaintiff
Mr G Odu, for the Defendant

JUDGMENT

10th March 2010

1. MAKAIL, J: The plaintiff sued the defendant for tortuous actions of about eight to nine policemen who raided his house and tavern at Kuli Gap located east of Mt Hagen town on 16th and 17th September 1991. He alleged that the policemen who raided his house and tavern were from Mt Hagen Police Station and were led by Chief Superintendent Samson Mapi. They entered his house and destroyed his personal items, stolen his cash money and looted cartons of beer, soft drinks and other goods from his tavern. They also damaged his motor vehicle by breaking its glasses, deflating its tyres and smashing its doors.

2. In his statement of claim endorsed to the writ of summons filed on 29th February 1996, he claimed general damages of K7,208.95 for loss of property of various descriptions, general damages for trespass, exemplary damages and damages for violation of constitutional rights including interest and legal costs. In its defence filed on 01st May 1996, the defendant generally denied liability. It denied the existence of a raid by members of the police and had called for the identification of the policemen involved. It alleged that as no policemen were identified by the plaintiff, it could not be held liable for actions and omissions of the unidentified policemen.

3. Trial was held to determine liability and also assessment of damages in the event that liability is determined against the defendant. The issues therefore were, whether members of the police conducted the raid and if so, whether they acted within the scope of their duty or employment. In the event that liability is determined against the defendant, the last issue is the measure of damages. Both parties tendered their witnesses’ affidavits by consent and elected not to cross examine the deponents. For the plaintiff, the following affidavits were tendered:

1. Affidavit of the plaintiff sworn on 13th August 1999 and filed on 18th August 1999, (exhibit "P1");

2. Affidavit of Mark Peke sworn on 04th June 1999 and filed on 18th June 1999, (exhibit "P2");

3. Affidavit of Biange Naringa sworn on 04th June 1999 and filed on 18th June 1999, (exhibit "P3");

4. Affidavit of Kai sworn on 04th February 1999 and filed on 19th February 1999, (exhibit "P4");

5. Affidavit of Dobri Rapi sworn on 18th February 1999 and filed on 19th February 1999, (exhibit "P5");

6. Affidavit of Simon Noki sworn on 18th February 1999 and filed on 19th February 1999, (exhibit "P6"); and

7. Affidavit of Peter Charles Kopunye sworn and filed on 14th December 2004, (exhibit "P7").

4. For the defendant, the following affidavits were tendered:

1. Affidavit of Teddy Tei sworn on 12th July 2002 and filed on 07th August 2004, (exhibit "D1"); and

2. Supplementary affidavit of Teddy Tei sworn on 28th May 2004 and filed on 17th August 2004, (exhibit "D2").

Liability

5. I have perused the affidavits and deduce the following as the undisputed facts: the plaintiff is from Kuli Gap, near Mt Hagen town of this province. He is a medium size business operator as he owned a tavern called Kuli Gap tavern and also a coffee buyer. He also owned a house and a motor vehicle. He is also a respected community leader, a member of the Peace and Good Order Committee and a reserve member of the Police Force. On 16th and 17th September 1991, a group of men entered his premises and destroyed his personal items, stole his cash money and looted cartons of beer and soft drinks and other goods from his tavern. They also damaged his motor vehicle by breaking its glasses, deflating its tyres and smashing its doors.

6. The facts in dispute are; the plaintiff alleged that it was members of the police who raided his house and tavern on 16th September 1991. He and his witnesses identified one of them as Chief Superintendent Samson Mapi. This policeman led a group of policemen to his premises and gave orders to them to destroy and loot his personal items, cash, cartons of beers, soft drinks and other goods. The plaintiff alleged that the reason for the policemen raiding his house and tavern was because one of the policemen identified as Teddy Tei was assaulted by three men from Kuli Gap area at Kuli Gap earlier that day. Mr Tei was traveling in a PMV bus from Lae to Mt Hagen when he was attacked by a group of men who were allegedly drunk. It happened that Mr Mapi was driving past that afternoon and saw the fight and stopped. He came to the aid of Mr Tei but in the process the men surrounded him and removed a pistol from him and fled.

7. The plaintiff and a policeman named Papa retrieved the pistol from the three men and returned it to Mr Mapi. They also arranged with Mr Mapi to hand over the three men at the road side at Kuli Gap for the police to pick them up. Mr Mapi and the policemen returned the same afternoon to pick them up. It was there that Mr Mapi gave orders to the policemen to destroy the plaintiff’s house and tavern and loot his personal items and goods.

8. The defendant’s evidence through Mr Tei is that; he is from Mul-Baiyer electorate and a policeman based at Mt Hagen police station. He was attacked by men while traveling from Lae to Mt Hagen at Avi in a PMV bus. A man by the name of Parakui Koi attacked him by punching him on his chest, grabbed his shirt collar and pulled him out of the PMV bus. He got out of the PMV bus and tried to fight back when other drunkards on the road converged on him. They came in numbers. During the attack, the Western Highlands Provincial Police Commander, Mr Mapi was driving passed and saw the attack and stopped. He called the attackers to stop but they kept on assaulting him. He saw Mr Mapi and ran to him and some of the attackers pursued him. They also surrounded Mr Mapi and removed Mr Mapi’s pistol and fled. He was able to get into the motor vehicle and Mr Mapi drove off quickly to escape further attacks.

9. Mr Mapi reported the attack to Mt Hagen police station. The main attackers were later identified as Parakui Koi, Mark Wimb and Namba. They were arrested by Mt Hagen police and charged for assault. They were convicted by the Mt Hagen District Court for assault and fined K400.00 each and placed on good behaviour bond. He has no knowledge of any damage caused by the police at the plaintiff’s premises. He made a statement to the police after the plaintiff, who is his wife’s uncle (in law) pestered him to make a statement so that he (the plaintiff) could make a claim against the State for loss suffered and he obliged.

10. However, he said that he was not personally present when policemen raided the plaintiff’s premises on the dates in question and said that all his attackers were the plaintiff’s tribesmen and were at the plaintiff’s tavern drinking beer that day. Finally, he denied signing an affidavit filed by Kopunye Lawyers on 17th February 1999. He also said that the signature on that affidavit was not his. His signature was the one he used during his schooling days and appeared on the affidavits marked exhibits "D1" and "D2".

11. From the above disputed facts, which side should I accept? Mr Kopunye of counsel for the plaintiff submitted that I should accept the version given by the plaintiff and his witnesses. He submitted that the plaintiff’s evidence is consistent with the evidence of witnesses Kai, Mark Peke and Dobri Rapi in relation to the events surrounding and leading up to the raid of the plaintiff’s house and tavern by policemen led by Mr Mapi. He further submitted that the evidence of Mr Tei should not be accepted because he is not a witness of truth. He gave conflicting evidence. He pointed to Mr Tei’s evidence in his affidavits (exhibits "D1" and "D2") and submitted that they are not consistent with an earlier statement made by Mr Tei dated 10th April 1995 marked as annexure "A’" to the affidavit of Peter Charles Kopunye (exhibit "P7"). Hence, his evidence is unreliable and should be rejected by the Court.

12. Counsel for the defendant had not filed any written submission to assist the Court in its deliberations despite been directed to do so. This means, I have no submissions from the defendant in relation to the objection raised by the plaintiff in relation to the evidence of Mr Tei, which in my view is crucial to the defence case. And so, taking into account only the submissions of the plaintiff’s counsel, the first matter to note is that, Mr Tei was not cross examined by the plaintiff’s counsel as both parties elected not to cross examine all the witnesses including Mr Tei. That leaves the witnesses’ evidence including Mr Tei’s untested. This places the Court in a very difficult position in deciding which witnesses’ evidence should be accepted as first, the Court is unable to see for itself the demeanour of each witness and secondly, note the answers to questions in cross examination to weigh out before deciding which witnesses’ evidence is reliable and should be accepted.

13. Be that as it may, I do not think that much of the evidence of Mr Tei is so contradictory that it renders itself unreliable that it ought not to be believed, hence, rejected. On the other hand, despite his claim that he had not made the statement of 10th April 1995, which I do not wish to make any finding here, when the contents of that statement is compared with the contents of his affidavits (exhibits "D1" and "D2"), there is very little difference. In fact, almost everything is the same except for one or two differences. For example, in the affidavits, Mr Tei denied been aware of the raid at the plaintiff’s premises. In the statement, he said "[d]uring the apprehension of these suspects, police did destroy some properties and got some beer belonging to a prominent leader namely: Bob KEI who always assists police in the apprehension of criminals........"

14. He had not stated in the statement that he was present at the scene at the time the police raided the plaintiff’s premises, house and tavern and destroyed his personal items, stole cash money and looted cartons of beers, soft drinks and goods from the tavern. Hence, this makes me think that Mr Tei was not present at the scene of the raid. Only cross examination of Mr Tei would have shed more light on this issue. Nonetheless, the absence of a statement that he was present at the scene is consistent with what he had stated in his affidavits, that is, he was not present at the scene.

15. If it is accepted that Mr Tei was not present at the scene of the raid on that day, that makes his statement in relation to the raid by police hearsay and for that reason the Court must reject that evidence. This in turn means, there is no admission by Mr Tei that there was a raid by police at the plaintiff’s premises on that day. Apart from that, the rest of his evidence about being attacked by a group of men at Kuli Gap on 16th September 1991 is not hearsay. Further, that aspect of his evidence is consistent with the plaintiff and his witnesses’ evidence as there is evidence from these witnesses that police raided the plaintiff’s house and tavern and destroyed his personal items, stole cash money and looted cartons of beers and goods from the tavern. I now turn to the evidence of the plaintiff and his witnesses.

16. I find the evidence of the plaintiff consistent with the evidence of his witnesses and have no reason to doubt his evidence. The plaintiff’s evidence is this; on 16th September 1991 at about 3:00 pm, at Kuli Gap he witnessed an attack on Mr Tei, a policeman based at Mt Hagen police station. He was attacked by three men who were allegedly drunk. It happened that Mr Mapi was passing by that afternoon and saw the attack and stopped his motor vehicle. He came to the rescue of Mr Tei by firing a warning shot into the air from his pistol to stop the men from attacking Mr Tei. The three men turned on Mr Mapi and removed the pistol from him. When he saw that, he intervened and removed the pistol from the men and gave it back to Mr Mapi who quickly got into his motor vehicle and drove off with Mr Tei.

18. He anticipated that Mr Mapi would return that same afternoon to apprehend the attackers, so he rounded up the three men responsible for the attack to hand over to Mr Mapi when he arrived. At about 6:30 pm, Mr Mapi returned with eight to nine policemen in police vans. They were armed with guns. Mr Mapi parked his van in front of the gate of his premises and came out. When he saw Mr Mapi, he walked over to him and told him that the three men were rounded up and ready to be handed over to the police. Without any reply, Mr Mapi ordered the policemen saying "come on, move". The first van in front of the gate of the premises bumped the gate with its pull bar and drove through followed by the others. The policemen got off the vans and assaulted people inside the premises except the plaintiff. They kicked and punched them with their boots and guns.

19. They broke down the main door to his house and went in while others broke down the door to the tavern. They assaulted the bartender but he managed to flee from further assaults. When he fled, he left behind cash money and beers and other goods like cigarettes, soft drinks and strong alcoholic drinks (gold cup) and the policemen collected them. They loaded 45 cartons of beer from the tavern onto their vans. At his house, other policemen went into his bedroom and removed K5,070.00.00 underneath his mattress in his bedroom. They took four brief cases in his cupboard containing cash of K5,900.00, money belonging to Kalanga Coffee Factory. They took them away.

20. Early in the morning of the next day, 17th September 1991, the same group of policemen returned. This time, without Mr Mapi. They entered his premises and pointed guns at his sister and sister in law in his presence. They went into the house and removed three and a half cartons of beers from the freezer inside his house and got his axe and two dried coconuts. Others went into the tavern again and removed thirteen cartons of beer, five cartons of pepsi soft drinks, a carton of lamp flaps, and four dozens of Cambridge cigarettes, saw, hammer and pinch bars. They also went behind the house and chopped down all the sugar canes in the garden and took them away.

21. They also broke the windscreen, deflated two tyres by cutting them and smashed the doors of his motor vehicle bearing registration no ACB-741. They left around 10:30 am. He produced a list of the items destroyed and looted by the policemen, a quotation of the costs of repairs for the damaged motor vehicle from J’s Motors Pty Ltd dated 19th September 1991 and a liquor license for year 1995: see annexures "A", "B" and "C" to his affidavit (exhibit "P1").

22. I also accept Kai’s evidence. He drove a PMV bus, a Toyota Coaster from Lae to Mt Hagen on 16th September 1991 and after dropping off passengers in Mt Hagen town, returned to leave it at the owners’ house. After leaving it, he and his son, age 4 at that time walked passed the plaintiff’s premises when he saw policemen at the premises. Further passed the plaintiff’s premises, some policemen stopped him and asked him where he was from. One of the policemen asked him if he was a relative of the plaintiff and before he could reply, this policeman punched him on his face. The impact caused him to "black out" and he fell to his knees at the same time holding firmly his son to his chest.

23. The policemen continued to interrogate him as to whether he was a relative of the plaintiff and where he was heading. He told them that he was on his way home with his son. At that instance, one of the policemen who stood at his back kicked him with his boots and the impact caused him to fall on the ground. This policeman kicked him three more times and he fell unconscious. When he woke up, he discovered that he was lying outside the gate of the plaintiff’s premises and his son gone. The policemen again kicked him with their boots on his body and face and threw him into a motor vehicle and brought him to Mt Hagen police station where he was locked up.

24. I also accept the evidence of Dobri Rapi who is a tribesman of the plaintiff who also lived at Kuli Gap. He was at the plaintiff’s premises on 17th September 1991 helping out to clean up the "mess" the police left behind the previous day when policemen arrived. He thought they were there to see the plaintiff but instead, three of them went up to him and put a gun barrel on his ears and ordered him to open his bilum which he did. One of them slapped him on his face, kicked him three times and pulled the bilum off him. With the bilum in hand, they entered the tavern and filled the bilum with SP beer bottles and left. When he checked inside the tavern afterwards, he saw that there was nothing left.

25. The evidence of Simon Noki is pretty much straight forward. He was then the Liquor Licensing Commissioner and confirmed that the plaintiff had a licence to sell liquor and at that time, operated a tavern at Kuli Gap. I accept his evidence. The evidence of Biange Naringa is also straight forward. He is a church elder of the Lutheran Church at Kuli Gap. He confirmed that first, the plaintiff owned and operated a tavern at Kuli Gap and secondly, writing a letter of reference for the plaintiff to the Chairman of the Provincial Liquor Licensing Board for a liquor licence. A copy of that letter is marked as annexure "A" to his affidavit (exhibit "P3"). I accept this witness’ evidence.

26. In the end, there is overwhelming evidence as I find from the evidence of the plaintiff and his witnesses identifying about eight to nine policemen under the command and direction of Mr Mapi raided the plaintiff’s premises by destroying his personal items, motor vehicle, looting cash money and cartons of beer and goods from his tavern at Kuli Gap on 16th and 17th September 1991. I find that Mr Mapi ordered or directed the policemen to destroy and loot the plaintiff’s personal items, cash money, cartons of beer and goods including damaging the plaintiff’s motor vehicle. And I do not believe that because the plaintiff had not identified and named individual policemen involved in the raid should render the action incompetent and dismissed.

27. That point was considered in Mali Pyalia & Ors -v- Chief Inspector Leo Kabilo & The State (2003) N2492 where Davani, J held that it is a misconception of the law to seek dismissal of an action where a plaintiff has not named the policemen involved in the raid, as it is not necessary to name them under the principles of vicarious liability of a master and servant relationship. The principles of vicarious liability makes it implicit that a servant always has the authority of his master when performing his duties and functions and the master is liable for the actions and omissions of his servant. The onus is on the plaintiff to establish by appropriate evidence that the tortfeasor is a servant of the master. In the present case, while individual policemen had not been named in the action except Mr Mapi, I am nonetheless satisfied that the plaintiff and his witnesses had unequivocally identified them as members of the police force, one of them being, Mr Mapi.

28. Having found that policemen were the persons who raided the plaintiff’s house and tavern and destroyed and looted his personal items, cash money, cartons of beer and goods, it does not necessarily mean that the defendant should be held liable for their unlawful actions. This is because there is a further need for the plaintiff to establish that the policemen acted within the scope of their duty or employment when they raided the plaintiff’s house and tavern. That is the second issue for determination: see Desmond Huaimbukie & Ors -v- James Baugen & The State (2004) N2589.

29. For this issue, there is no doubt in my mind as I find on the evidence that policemen acted within the scope of their duty or employment when they raided the premises of the plaintiff and destroyed his house and tavern, destroyed his personal items, stole cash money including looting of cartons of beer and goods. There are two reasons for making this finding. First, the policemen went to the plaintiff’s village at Kuli Gap to apprehend the attackers of Messrs Mapi and Tei. In my view, they were in pursuit of the attackers when they decided to also raid the plaintiff’s premises.

30. Secondly, they were led by Mr Mapi to the plaintiff’s premises and it was Mr Mapi who gave orders for them to raid the plaintiff’s house and tavern. In my view, Mr Mapi is a very senior police officer, a Chief Superintendent and Provincial Police Commander of this province at the relevant time and no doubt when he gave those orders to the policemen to raid the plaintiff’s premises, it was taken that all was well for them to carry out the raid. When they did, it was seen as discharging their powers and functions as police officers.

31. For these reasons, I am satisfied that the policemen under the command and direction of Mr Mapi acted within the scope of their duty or employment to raid the plaintiff’s premises and the defendant as the principal and employer should be liable for their tortuous actions under the principles of vicarious liability under section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297. Judgment on liability is therefore, entered against the defendant.

Quantum of damages

32. Having established liability against the defendant, the next issue to consider is the quantum of damages. What damages is the plaintiff entitled to recover from the defendant? Before assessing the damages for the plaintiff it is appropriate to consider the law on damages. The general principle in damages was stated by Lord Blackburn in the case of Livingstone -v- Rawyards (1880) 5 App cases 25 at 39, where he said,

"Where an injury is to be compensated by damage, in settling the sum of money to be given for... damages you should as nearly as possible, get at the sun of money which will put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for he is now getting compensation."

33. The above principle has been reaffirmed and applied in subsequent cases such as Butler -v- Egg & Egg Pulp Marketing Board [1966] HCA 38; (1996) 114 CLR 185 and the Albazero (1977) AC 774. When the Court is assessing damages it must be satisfied that the plaintiff has proven his loss. The fact that a judgment has been entered against a defendant does not necessarily mean that the plaintiff is automatically entitled to what he is claiming. This principle is stated in Peter Wanis -v- Fred Sikiot & The State (1995) N1350, Eriare Lanyat & Ors -v- George Wagulo & The State [1997] PNGLR 253, Obed Lalip & 20 Ors -v- Fred Sikiot & The State (1996) N1457, Jonathan Mangope Paraia -v- The State (1995) N1343 and many more subsequent cases.

34. Again, the defendant had not offered any evidence to contest or challenge the plaintiff’s claim. Nevertheless that fact can not go against the defendant. The onus is on the plaintiff to prove his loss, as put by Lord Goddard, C.J in Bonham - Carter -v- Hyden Park Hotel (1948) 64 TLR 177 at p 178:

"Plaintiff must understand that, if they bring actions for damages, it is for them to prove their damages. It is not enough to write down particulars and so to speak, throw them at the head of the court, saying - This is what I have lost, I ask you to give me these damages, They must prove it."

35. Again, in the case of Peter Wanis (supra) Woods, J said:

"Whilst the State has failed to 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."

36. His Honour went on:

"First he claims for a permanent house. There is no evidence apart from his assertion and a photograph or a blackened site as to the nature and standard of this building. Normally when substantial building is destroyed by fire one usually gets an insurance assessor in to assess the damages. Here the plaintiff has brought no independent evidence as to the standard of the house........................ It is not enough to just assert an estimate, it must be supported.

The plaintiff is also claiming for loss of clothes and household properties and tools in the destruction. Whilst, I an prepared to accept that there was some loss of personnel property the court cannot just find any amount based on what the plaintiff asserts, to consider more that just a basic amount there must be some other independent evidence from people or officials who knew the plaintiff’s house or knew his life style to account for such values."

37. In applying the law to the facts of this case it is crucial for the plaintiff to establish that he suffered some loss as a result of the raid. Turning first to the kind of relief sought, as noted above, the plaintiff has sought the following relief:-

* General damages in the sum of K7, 208.95.

* Exemplary damages.

* Damages for violation of constitutional rights.

* Damages for trespass to be assessed.

* Interest at 8% on such damages thereon pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act, Ch 52.

* Legal costs.

38. I will consider each relief or head of damages as sought by the plaintiff in the order as set out in the prayer for relief.

General damages

39. Under this head of damages, the plaintiff claimed for loss of property in the raid and the particulars of the goods, chattels and personal items lost or destroyed are set out at annexure "A" in addition to what he stated in his affidavit (exhibit "P1"), which are:

Goods and Chattels

* K5,000.00 cash - K5,000.00
* K 792.30 cash - K 792.30
* 13 x Cartons of SP bottle beer
@ K26.40 per carton - K 343.20
* 10 x Bottle Goldcups @ K20.00 each - K 100.00
* 4 x Dozens of Cambridge 20’s @ K20.00 - K 80.00
* 2 x Dried coconuts @ K0.50 each - K 1.00
* 1 x Axe - K 7.50
* 1 x Saw - K 6.00
* 1 x Hammer - K 5.00
* 2 x Pinch bars @ K4.50 each - K 9.00
* 5 x Cartons of Pepsi bottle @ K11.59 each - K 57.95
* 1 x Carton Lamp flaps - K 27.00
* Front windscreen broken, Rear L/Door
Rear R/Door as per quote by J’s Motors Pty Ltd

- K 780.00

-------------
Total K 7,208.95

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

40. I have considered the value of each item and in my view they seemed reasonable and relatively modest. Most of the items that were looted were cartons of beer and goods from the tavern and I am satisfied that he had a license to operate a tavern at that time when the police raided it. Therefore, he is entitled to claim damages for loss of these goods. In addition to that, the plaintiff’s evidence on the value of the loss is supported by witnesses Simon Noki, Biange Naringa and Mark Peke who verified that he is a businessman as he owned a tavern at Kuli Gap. In my view, they are persons of standing in the community, one a Liquor Licensing Commissioner, the other, a village councilor, and the other, a church elder and knew the kind of lifestyle the plaintiff led prior to the raid to give an independent assessment of the plaintiff’s claims.

41. I am also satisfied that I should award a total of K5,792.30 to compensate the plaintiff for loss of cash monies because he has established to my satisfaction that these cash monies were from the sale of liquor from the tavern and personal use. This case therefore, is different from Aimon Aure & Ors -v- The State [1996] PNGLR 85; (1995) N1346 where the plaintiff could not satisfactorily establish loss of large sums of monies held in their homes when police raided their village. I am further satisfied that I should award K780.00 for costs of repairs for the motor vehicle because the plaintiff has provided a quotation from J’s Motors Pty Ltd dated 19th September 1991 marked annexure "B" to the plaintiff’s affidavit (exhibit "P1"). In the end, I award a total sum of K7,208.95 as general damages for the loss of personal items, cash money and cartons of beer.

Exemplary damages

42. Under this head of damages, counsel for the plaintiff submitted that the defendant should be ordered to pay exemplary damages because it is clear that policemen went to the plaintiff’s premises to apprehend the attackers but went on under the command of Mr Mapi to conduct the illegal raid on the plaintiff’s premises. Therefore, the defendant should be held liable for the policemen’s actions. I reject this submission for two reasons. First, the purpose of exemplary damages is to punish the tortfeasor of his or her wrong doing so that it will have a deterrent effect on him or her and others in future. In my view, the defendant did not commit the wrong and cannot be liable for exemplary damages for actions of its servants and agents like in this case, policemen.

43. Secondly, I am not satisfied that the defendant should be ordered to pay exemplary damages for the unlawful actions of policemen. If there is to be an award, it should be against Mr Mapi as he was the one who gave the orders to the policemen to raid the plaintiff’s premises. He has been identified but for some unexplained reasons, the plaintiff had not named him in the action and so there is no basis for the Court to order him to personally pay exemplary damages. In Abel Tomba -v- The State (1997) SC518, the Supreme Court was reluctant to award exemplary damages against the State for abuse of power by members of the disciplined forces. In my opinion, the facts of this case do not warrant an award of exemplary damages against the defendant because the destruction and looting though severe and continuing, no individual policemen have been named in the action to enable the Court to make an order against them. For these reasons, I dismiss this claim.

Damages for violation of Constitutional rights

44. The plaintiff also claimed damages for violation of his constitutional rights. At paragraph 9(c) of the statement of claim, he alleged that the policemen violated section 57 (protection of the law), section 44 (freedom from arbitrary search and entry), section 42, (Liberty of person) and section 53 (protection from unjust deprivation of property). I am satisfied that the members of the police violated the plaintiff’s constitutional rights under sections 42, 44, 53 and 57 of the Constitution when they raided his premises and destroyed, stole and looted his personal items, cash money, cartons of beer and goods.

45. In my very recent judgment of Robert Taropen & Ors -v- The State: WS No 1166 of 2004 (Unnumbered & Unreported Judgment of 08th March 2010), a police raid case at Mamale village, Laiagam of the Enga Province, I observed at p 8 that:

"As every person in this country has rights to be protected from inhuman treatment, free from arbitrary search and entry and protection from unjust deprivation of property, the actions of the members of the police were a serious violation of the plaintiffs’ rights. In my view also, the actions of the members of the police can be best described as inhuman and cruel and done without any regard or respect to the dignity of mankind. In the circumstances, it is only fair that the plaintiffs be compensated by an award of damages for these breaches and this Court having wide powers to enforce breaches of Constitutional rights under sections 57 and 58 of the Constitution may award a reasonable award of damages to compensate the plaintiffs for the breaches of their Constitutional rights."

46. The present case is one of those cases where members of the police force have yet again violated citizen’s rights. For these reasons, the defendant must be ordered to pay damages to the plaintiff. What is a fair and reasonable amount to award as damages under this head of claim? In my view, the manner in which the members of the police destroyed and looted the plaintiff’s property was inhuman and cruel, hence making this case a serious case of violation of Constitutional rights.

47. I also take into account awards in past cases of similar nature in Nelson Pawa -v- Linus Yumbun & The State (2009) N3784 where I awarded K5,000.00, Kawi Yawi -v- Torepa Nenga, Anton Sinawai & The State (2002) N2209 where Jalina, J awarded K2,000.00, James Gunambo & Anor -v- Sergeant Thomas John Upaiga & The State: WS No 1321 of 2002 (Unnumbered & Unreported Judgment of 25th January 2010) where I awarded K2,000.00 and very recently, in Robert Taropen & Ors (supra) where I awarded K3,000.00 to each plaintiff. I distinguish those cases from this case on the basis that in the present case, the policemen raided the plaintiff’s premises twice, one on 16th September 1991 and the other on the next day (17th September 1991). To my mind, this aggravates the case, hence, justifies a higher award than those awarded in those past cases. For these reasons, I consider K8,000.00 a fair and reasonable amount, and I so award.

Damages for trespass

47. The plaintiff also claimed damages for trespass but I cannot see any difference between this head of damages and general damages. In my view, the plaintiff had not explained in detail the basis of the claim. Is it damages for trespass to person and if that is the basis, I find that there is no evidence to support it as there is no evidence from the plaintiff that he was assaulted by the policemen during the raid at his premises, although it is noted there is evidence that Kak and Dopri Rapi were assaulted by the policemen. However, there will be no award of damages for them because they have not been named as parties to the action. As for the plaintiff, I am of the view that general damages have been considered and awarded above and to consider and make another award under this head would be duplicating the awards. Therefore, I decline to make an award under this head of damages.

8% interest

47. Pursuant to section 1 of the Judicial Proceedings (Interest on Debts and Damages) Act, Ch 52, I will exercise my discretion to also award interest at the rate of 8% on the principal judgment comprising of general damages and damages for violation of constitutional rights of K15,208.95 from the date of issue of writ of summons of 29th February 1996 to date of judgment at a total of 4,747 days which shall be calculated as follows; 8% of K15,208.95 is K1,216.72, divided by 365 days in a year is K3.33 per day. Multiply K3.33 per day by 4,747 days gives K15,807.51. I award this sum.

Orders

The judgment of the Court therefore, is:

1. Liability is entered against the defendant.

2. Judgment in the sum of K7,208.95 against the defendant as general damages.

3. Judgment in the sum of K8,000.00 against the defendant as damages for violation of constitutional rights.

4. The defendant shall pay interest at 8% from the date of issue of the writ of summons to the date of judgment in the sum of K15,807.51.

5. The defendant shall pay the plaintiff’s costs of the action to be taxed if not agreed.

6. The time for entry of these orders shall be abridged to the date of settlement by the Registrar to take place forthwith.

_____________________________
Kopunye Lawyers: Lawyers for the Plaintiff
Acting Solicitor-General: Lawyers for the Defendant