Meya v Pundari [2010] PGNC 28; N3973 (19 March 2010)

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TORT - Liability - Trespass - Trespass to property - Unlawful raid - Destruction of property - Household items - Trade store goods - Tortfeasors - Identification of - Issue of - Nexus between tortfeasors and tortuous acts - Lack of.

CIVIL LAW - Standard of proof - Balance of probabilities - Burden of proof - Onus on party making allegations - Whether liability established on balance of probabilities.

EVIDENCE - Identification of tortfeasors - Evidence of - Lack of - Discrepancies - Contradictions - Inconsistencies - Vagueness - Uncertainty - Assumptions - Hearsay - Onus not discharged - Action dismissed.

Francis Wandaki & 79 Ors -v- Wini Henao & The State (2009) N3676
Bob Kol -v- The State: WS No 216 of 1996 (Unnumbered & Unreported Judgment of 10th March 2010)

1. MAKAIL, J: In this action, the plaintiff is suing the defendants for damages arising from an alleged unlawful raid by security personnel of the second defendant and members of the police force at Kairik village, Porgera, Enga Province on Friday 12th July 1996 at around 4:30 pm and on Saturday 13th July 1996 at around 11:30 am. In his statement of claim, he alleges that on those mentioned dates and times, security personnel of the second defendant and members of the police force under the command and control of the first defendant went to Kairik village and without cause or reason, jointly raided his house and trade store. As a result, he suffered loss and damages, particulars of which are as follows:

*1 x Snooker table coins valued	-	K 1,800.00
*3 x Snooker tables & K2,200.00	-	K 6,800.00
*2 x Generators @ K3,000.00 & @ K5,000.00	-	K 8,000.00
*1 x TV screen valued @ K500.00	-	K 500.00
*1 x Video player valued @ K700.00	-	K 700.00
*60 x Carton lamp flaps @ K43.00	-	K 2,580.00
*Household items damaged	-	K 2,500.00
Total	-	K22,880.00

2. The plaintiff also claims economic loss for operating a snooker business at a daily taking of K20.00 for 3 tables at K60.00 per day for 30 days in the total sum of K1,800.00. In addition to that, he claims economic loss for sale of lamp flaps at K32.00 per carton for 30 cartons at K960.00. In a month, he incurred loss of K2,768.00.

3. The plaintiff further alleges that at the material time, the first defendant was responsible for the raid as he was the person who gave orders to the security personnel of the second defendant and members of the police force to carry out the raid in the course of his employment with the second defendant as its security coordinator. Hence, the second defendant is vicariously liable for the actions of the first defendant, the security personnel and members of the police force. The defendants in their defence, deny any raid at the plaintiff’s village at Kairik on the dates in question, and therefore say that they are not liable for the plaintiff’s losses. As a result, trial was conducted to determine both issue of liability and assessment of damages.

4. The allegations by the plaintiff in his statement of claim and the denial by the defendants in their defence bring up the issue of liability, and if liability is determined in favour of the plaintiff, the measure of damages. In respect of liability, the following issues arise for determination:

1. whether it was the first defendant and security personnel of the second defendant who destroyed the plaintiff’s household items and trade store goods; and

2. if so, whether they were acting within the scope of their employment when they destroyed them.

5. In my view, the first issue is crucial to the entire case as its determination may decide whether it would be necessary to determine the second issue including quantum. If it is found that the first defendant and security personnel of the second defendant were responsible for the raid, then the remaining issues will become relevant, but if it is found otherwise, that will be the end of the case.

6. It is instructive and a useful reminder to note that in civil law, the standard of proof is on the balance of probabilities and the burden of proof is on the party who makes the allegations. In a civil action, a plaintiff bears the onus of proving the allegations against a defendant on the balance of probabilities. This requires clear and admissible evidence from the plaintiff to establish the allegations. In this case, the action is one of trespass and the plaintiff bears the onus of proving first and foremost that the defendants were the tortfeasors in order to establish liability and succeed in the action. To determine whether the first defendant and security personnel of the second defendant were the tortfeasors, I must be satisfied on the evidence that first, they were the ones who were seen at the plaintiff’s premises at Kairik village, and secondly, destroyed the plaintiff’s household items and trade store goods.

7. The plaintiff gave evidence. Three other witnesses also gave evidence to corroborate his evidence. I deal first with the plaintiff’s evidence. First, did he see the first defendant and security personnel of the second defendant at the plaintiff’s premises and secondly, did he see them destroy the plaintiff’s household items and trade store goods? In his affidavit sworn on 15th June 2006 and filed on 24th June 2006 which was admitted into evidence without objection and marked exhibit "P1", he said that, on Friday 12th July 1996, at around 4.30 pm, and Saturday 13th July 1996 around 11:30 pm, the first defendant and a Mr Moses Baiwe led three police motor vehicles loaded with uniformed policemen and security personnel to Kairik village and raided his house and trade store. (Underlining is mine).

8. As soon as the policemen and security personnel entered his premises, the first defendant was heard saying, "This is the man who is giving us problems" and started kicking his trade store. He said the raid was "master minded" by the first defendant and Mr Baiwe together with uniformed policemen and security personnel and done without any reason. They destroyed his household items and trade store goods. He said, the order for the raid was given by the first defendant as he was the security chief of the second defendant at Porgera gold mine.

9. Based on the evidence of the plaintiff, I am unable to find that the plaintiff saw the first defendant and security personnel of the second defendant at his premises on Friday 12th July 1996. I am also unable to find that he saw them destroy his household items and trade store goods. There are a number of reasons for making these findings. The first reason is this, he did not say in his evidence that first, he saw them enter his premises and secondly, destroy his household items and trade store goods. He did not say where he was standing when he saw the first defendant and security personnel enter his premises.

10. Further, he did not say where he was standing when they destroyed his household items and trade store goods more so his claim that the first defendant "started kicking the trade store". Did the first defendant kick the door, walls or windows? He did not say or specify. Furthermore and very importantly, he did not differentiate between when he saw them, that is, whether on Friday 12th July 1996 or Saturday 13th July 1996 or on both dates. But I do not believe that the time of 11:30 pm is of great significance in terms of establishing inconsistencies in the evidence of the plaintiff. This is because the plaintiff may have misunderstood the time given his unsophisticated background and lack of appreciation of the English language, a fact not disputed by the defendants. (Underlining is mine).

11. He only made a general statement that the first defendant and a Mr Moses Baiwe led three police motor vehicles loaded with uniformed policemen and security personnel to Kairik village and raided his house and trade store on both dates. In my view, the evidence of the plaintiff is vague and unsatisfactory. It is also lacking in substance as far as those factual matters I have alluded to are concerned. A Court of law will not rely on evidence that is vague and lacking in substance to enter judgment against a defendant, like in this case. There must be clear and credible evidence establishing those factual matters alluded to above before the Court may reach a definitive decision.

12. In the case of Francis Wandaki & 79 Ors -v- Wini Henao & The State (2009) N3676, 80 plaintiffs sued police and the State for damages arising from an unlawful raid where various properties of the plaintiffs were allegedly destroyed by Mt Hagen based policemen at Kaiwe market, at the fringes of Mt Hagen town on 01st October 1998. I dismissed the action because, amongst other reasons, I found that the evidence was so vague and unsatisfactory in relation to the identification of the policemen as tortfeasors. I so found because there was also evidence of bystanders and opportunists taking advantage of the confrontation between youths and the policemen to raid the plaintiffs’ properties which had made it very crucial for the plaintiffs to identify the tortfeasors with certainty. I observed at p 14:

"In my view, it is one thing for the Plaintiffs to say that the policemen fired tear gasses and shot guns indiscriminately at them but it is another thing to say that the policemen looted and destroyed their property. In other words, the Plaintiffs must establish with certainty that the policemen looted and destroyed their property. It is not sufficient for them to say that the policemen fired tear gasses and shot guns at them indiscriminately and assume that the policemen then looted and destroyed their property."

13. With respect, the present case is a replica of Francis Wandaki’s case (supra) because there is evidence suggesting that policemen were also involved in the alleged raid apart from the defendants and as one would appreciate, police are not the security personnel of the second defendant. Both have different superiors and commanders who are responsible for the performance of their duties and functions. Hence, it is very critical for the plaintiff to establish with certainty that the first defendant and security personnel of the second defendant were seen at his premises and destroyed his household items and trade store goods.

14. Secondly, there are discrepancies in his evidence in relation to when the first defendant and security personnel of the second defendant entered his premises and destroyed his household items and trade store goods. Was it on Friday 12th July or Saturday 13th July 1996? He said at paragraph 2 of his affidavit that the first defendant, security personnel of the second defendant and policemen entered his premises and destroyed his household items and trade store goods on both dates while in cross examination by counsel for the defendants, he said, Friday 12th July 1996.

15. Further, he did not clarify in cross examination if the raid took place on both dates or only on Friday 12th July 1996. This is very crucial because as we shall see shortly, his witnesses have said that the alleged raid occurred on Friday 12th July 1996 while he seemed to suggest that it occurred on Friday 12th July 1996 and also on Saturday 13th July 1996. In my view, his evidence is inconsistent.

16. Thirdly, he contradicted himself when he said that the raid took place on Friday 12th July 1996 and Saturday 13th July 1996 and in cross examination by counsel for the defendants, he said it was on Friday 12th July 1996. He did not even mention or clarify in cross examination if there was a raid on Saturday 13th July 1996. In my view, this is a contradiction which casts doubt on the accuracy of his evidence and in turn, reliability of his evidence.

17. Fourthly, he assumed that the alleged raid was "master minded" by the first defendant because the first defendant is the chief security of the second defendant and that there was a confrontation between lower Porgera landowners and the management of the second defendant over allegations of environmental damage caused by the Porgera gold mine in April of that year. As a result, the first defendant sent security personnel of the second defendant and policemen to raid his house and trade store because he was one of the trouble makers. How did he become privy to this information? He did not say, and there is no evidence from his witnesses on that point. In my view, it is an assumption that not only has no evidentiary basis but also hearsay.

18. In this respect, I distinguish this case from the case of Bob Kol -v- The State: WS No 216 of 1996 (Unnumbered & Unreported Judgment of 10th March 2010) where despite the defendant’s denial, I found Chief Superintendent Samson Mapi was present with eight to nine policemen from Mt Hagen police station at the plaintiff’s premises at Kuli Gap, located east of Mt Hagen town and gave orders to them to raid the plaintiff’s house and tavern on 16th September 1991. I so found because the plaintiff gave unequivocal evidence that he saw Mr Mapi and eight to nine policemen at his premises on that day.

19. In the present case, there is no direct evidence from the plaintiff and his witnesses to show that, first the first defendant gave orders to the security personnel of the second defendant and policemen to raid his house and trade store. Secondly, that he led them to the plaintiff’s premises and inter-alia, ordered them to destroy the plaintiff’s household items and trade store goods. Thus, I must find that his assertion that the first defendant "master minded" the raid is based on an assumption which the Court cannot rely on to find that the first defendant and the security personnel of the second defendant were involved or led the raid.

20. The final reason is this, he said at paragraph 3 of his affidavit that, the first defendant was heard saying, "......This is the man who is giving us problems." in reference to him (the plaintiff). But he did not state that he heard the first defendant utter these words or say words to that effect. These leaves open the suggestion that he did not hear what the first defendant said and it could have been someone who heard it and later told him. Be that as it may, in my view, the evidence of the plaintiff in relation to the words allegedly uttered by the first defendant is vague. Hence, I am not satisfied if first, the first defendant was present at the plaintiff’s premises on that day and secondly, uttered these words to connect him to the alleged raid.

21. It is said that where evidence of a witness is vague, inconsistent, contradictory or based on assumptions, it looses its credibility and becomes unreliable. In the present case, I find that the evidence of the plaintiff is vague, inconsistent, contradictory, and based on assumptions, that it has lost its credibility and is unreliable that I must reject it in so far as identification of the first defendant and security personnel of the second defendant at the alleged raid of the plaintiff’s premises is concerned.

22. I turn to the second witness, Micha Ekape. First, did he see the first defendant and security personnel of the second defendant at the plaintiff’s premises, and secondly, did he see them destroy the plaintiff’s household items and trade store goods? In his affidavit sworn on 15th June 2006 and filed on 24th August 2006 which was admitted into evidence without objection and marked exhibit "P2", he said, on Friday 12th July 1996 at around 4.00 pm, security personnel employed by the second defendant and some policemen looted and destroyed the plaintiff’s household items and trade store goods. The policemen and security personnel went there because Porgera Joint Venture ("PJV") hired them to restore order following lower Porgera landowners protest against PJV’s distribution of compensation for environmental damage caused by the dumping of toxic wastes and substance into the Porgera river.

23. He said, he is unable to put a value on the household items and trade store goods looted and destroyed by the plaintiff but is able to verify that the plaintiff was a businessman as he was operating a trade store in Kairik village. He said when the raid took place he ran away from the scene in fear of being attacked by the police. In cross examination by counsel for the defendants in relation to his location at the time of the alleged raid, he said "I was at Kairik when police came and destroyed the place". When asked of the time of the alleged raid, he said it was at 4:00 pm. When further asked, "Where did you ran to?" he said, "I was afraid of the police and I ran away into the bush."

24. In my view, this witness’ answers to the above questions by counsel for the defendants establish that police raided the plaintiff’s house and trade store and not the first defendant and security personnel of the second defendant. This view is fortified when considered with further answers of this witness in cross examination. When counsel for the defendants further asked him as to how he came to know that security personnel of the second defendant were involved in the raid, he said, "I am from the village, I heard people talk about it and I saw it." Apart from been hearsay, (because he heard it from other people that security personnel of the second defendant were involved in the raid), I am of the view that he could not have possibly seen them because he ran away when he saw policemen arrived.

25. When it was further suggested in cross examination by counsel for the defendants that he assumed that security personnel of the second defendant were involved in the alleged raid, he maintained that it was not an assumption. But when further asked of the source of that information, he said, "This is from the company, the company damaged the river of lower Porgera and lower Porgera people complained and demanded compensation and police came and fought the lower Porgera people." In my view, the answers of this witness show that he assumed that the security personnel of the second defendant also raided the plaintiff’s house and trade store, despite his repeated admissions that it was the police. In my view, this shows his evidence is not only based on an assumption by also contradictory.

26. Further, when referred to paragraph 5 of his affidavit by counsel for the defendants in relation to the policemen and security personnel raiding the plaintiff’s premises, and asked for the source of that information, he said, "Because company security came with them." In my view, although he eventually said that ".....company security came....." I am not satisfied that what he said is true because it is clear to me that he changed his story in relation to the involvement of the security personnel of the second defendant. I say this because if it is true that the first defendant and security personnel of the second defendant were part of the raiding team, he should have said so at the outset of the cross examination by counsel for the defendants. He did not and towards the end of the cross examination decided to say so. This shows that he is not consistent with his evidence and that makes me doubt his evidence.

27. My doubt is made even stronger when he said that there were many policemen who came in three motor vehicles and he saw only the "security boss" in response to the Court’s questions about the number of policemen who raided the plaintiff’s house and trade store and whom he saw at the plaintiff’s premises. In my view, these answers confirm that this witness changed his story in an attempt to establish that the security personnel of the second defendant were involved in the raid. Besides, he did not give the name of the "security boss" and cannot expect the Court to assume that it was the first defendant.

28. In so doing, he has cast more doubt in my mind than providing satisfactory answers to the Court’s concerns. I am therefore, left to decide whether or not to believe him. I conclude that, apart from contradicting himself, being inconsistent and relying on assumptions, I do not believe that he told the entire truth in relation to the involvement of the first defendant and security personnel of the second defendant. I do not give him any credence in so far as identification of the first defendant and security personnel of the second defendant at the plaintiff’s premises is concerned.

29. The third witness is Palo Wape. Again, did he see the first defendant and security personnel of the second defendant at the premises of the plaintiff and did he see them destroy the plaintiff’s household items and trade store goods? In his affidavit sworn on 15th June 2006 and filed on 24th August 2006 which was admitted into evidence without objection and marked exhibit "P3", he said that, on Friday 12th July 1996 at around 4.00 pm policemen and security personnel from PJV went to Kairik village and destroyed the plaintiff’s house and trade store. He said the plaintiff is a respected leader, church leader and a small businessman at that time. He was a very successful businessman as his business was progressing well.

30. He said, he could not put a value on the operation of the business but confirmed that the plaintiff had snooker tables, kaibar, a Toyota Stout vehicle and a trade store trading as retail and wholesale. As a wholesaler, he sold cartons of freezer goods like lamp flaps. He further stated that the plaintiff lost all of them when the policemen and security personnel from PJV looted and set a blaze the property on the pretext of suppressing lawlessness at Kairik village.

31. This witness did not say if he saw the first defendant at the plaintiff’s premises except to make a general statement at paragraph 2 of his affidavit that, ".........Policemen together with Security personnel from Porgera Joint Venture came to destroy the Plaintiff’s property." He also did not say how he recognized the security personnel of the second defendant. That is, he did not say if they were wearing uniforms, and if so, what kind. He did not say how many security personnel turned up or if he personally knew any of them. He did not even say he saw the first defendant.

32. In cross examination by counsel for the defendants in relation to his location on that day, he said that he was at Kairik market. When asked whether it was 11:30 pm or 4:00 pm and who was telling the truth, he said police went there at 4:00 pm and that was the correct time and they destroyed the plaintiff’s household items and trade store goods. When further asked as to what he did, he said, "Police wanted to assault me, so I ran away." If he ran away, in my view, he could not have possibly seen the security personnel, let alone the first defendant entering the plaintiff’s premises. In my view, his evidence is vague in so far as identifying the first defendant and security personnel of the second defendant is concerned.

33. Again, as I said above, a Court of law would not rely on such evidence to hold the defendants liable for any alleged wrong committed against the plaintiff. The Court expects and is entitled to expect evidence of specific details in relation to the involvement of the defendants before it may pass judgment upon them. For these reasons, I find his evidence vague, hence unreliable: see Francis Wandaki’s case (supra).

34. I also find his evidence contradictory. He stated at paragraph 5 of his affidavit that "......policemen and security personnel from Porgera Joint Venture looted and set ablaze his property......." and when asked in cross examination by counsel for the defendants if the police burnt down the property, he said no. In my view, the answer suggests that either he was not present and witnessed the alleged raid at that time or he was there and saw it and is lying. Whatever it is, it has put doubt in my mind whether this witness’ evidence is credible and reliable. Taking into account the vagueness and contradiction in his evidence and his evidence over-ally, I am not satisfied that he saw the first defendant and security personnel at the plaintiff’s premises and destroyed household items and trade store goods.

35. I turn to the evidence of the last witness, Lamu Yangea. Again, did he see the first defendant and security personnel of the second defendant at the plaintiff’s premises and did he see them destroy the plaintiff’s household items and trade store goods? In his affidavit sworn on 15th June 2006 and filed on 24th August 2006 which was admitted into evidence without objection and marked exhibit "P4", he said that, he is a magistrate of Paima Village Court in Porgera. On Friday 12th July 1996 at around 4:00 pm, he was at Kairik village, and the first defendant arrived with security guards from PJV and some policemen. They raided the plaintiff’s house and trade store.

36. He said as a result, the plaintiff’s household items and trade store goods were looted and destroyed. He said he is unable to give the details of the household items and trade store goods including their value, however, he confirmed that, at the material time, the plaintiff was operating a trade store in the village and a respected village leader. He is also a deacon in the Seventh-Day Adventist Church. He was cross examined by counsel for the defendants in relation to the timing of the raid as follows:

"Q: You said that police started incident at 4:00 pm and plaintiff said at 11:30 pm, who is correct?

37. From the above answer, it is clear that first, he accepted that police raided the plaintiff’s house. He did not mention if the first defendant and security personnel of the second defendant were also involved in the alleged raid. Secondly, he accepted that it was on Friday 12th July 1996 at 4:00 pm. I am inclined to believe his evidence in that respect because it is consistent with the evidence of Micha Ekape and Palo Wape who said that the alleged raid took place on that date and time and I do not believe that the time of 11:30 pm is of great significance in terms of establishing inconsistencies in the evidence of the plaintiff. As I said above, this is because the plaintiff may have misunderstood the time given his unsophisticated background and lack of appreciation of the English language, a fact not disputed by the defendants. (Underlining is mine).

38. However, he said in cross examination that he ran away when police raided the plaintiff’s house. So how could he possibly have seen the first defendant and security personnel of the second defendant at the plaintiff’s premises? In my view, it would have been impossible. The view I hold is further fortified by his answer in cross examination to the distance between him and the location of the alleged raid as follows:

39. He did not say if he stopped and looked back. The distance in my estimation is about 50 meters (distance between the new building across the road and the witness box of Mt Hagen National Court - Court room no 1). Given these two factors, I am of the view that this witness was placed in a disadvantageous position when it came to identifying the defendants. He also did not say exactly what the first defendant and the security personnel of the second defendant did when they entered the plaintiff’s premises, except a general statement that they raided the plaintiff’s house and trade store.

40. In my view, this evidence is vague and unsatisfactory as there is evidence of police presence at the relevant time. Hence, there must be a clear distinction between the two groups. As I said earlier, the policemen are not security personnel of the second defendant. They have different superiors and commanders responsible for the performance of their duties and functions. It is therefore, crucial that the plaintiff and his witnesses must properly identify the security personnel of the second defendant if they assert that they were involved in the alleged raid. In my view, the evidence of this witness is vague, lacking and of no assistance in so far as the identification of the first defendant and security personnel of the second defendant is concerned. In other words, there is no nexus between the defendants as the alleged tortfeasors and the tortuous acts, being the alleged raid at the plaintiff’s premises.

41. When the evidence of the plaintiff and his three witnesses are compared with the evidence of the only witness for the defendants, namely the first defendant, the first defendant’s evidence seems logical, consistent and without discrepancies. I must also say that he was an impressive witness according to my observation of him in the witness box both in evidence in chief and cross examination. I have no reason therefore, to doubt his evidence except one or two observations I will make shortly. He gave oral evidence and also by affidavit sworn and filed on 26th May 2008. His affidavit was tendered by consent and marked exhibit "D1".

42. His evidence is that, in 1996 he was the security coordinator at the Porgera gold mine and his job included supervising and controlling all security work within the mine. He said he was also responsible for looking after the police units which were stationed at the mine in terms of their accommodation, food, allowances and other logistical support required by the police but the command and control was with the supervisors. He said, in 1996 they were operating out of the same building at the mine.

43. He also said, on the afternoon of Friday 12th July 1996, he picked up a radio message on the police radio while at Paiam police station with four other police reservists that, there was trouble at Kairik market between a police mobile squad unit and the locals from Kairik village. He said, he immediately took the four reservists with him to Kairik market which is about 4 meters from the airport. The Kairik airport had Jet-A1 fuel for aircrafts inside the airport area and so he moved quickly past the market and on to the airport and secured it.

44. He further said, he did not stop at Kairik market to find out what the problem was but went straight to the airport and secured the airport where the jet fuel facility was located. He also said, the landowners and PJV held a meeting in April for PJV to address the pollution problems at the mine but that meeting fell through and they were on alert for any trouble by the landowners. He said, he did not see what happened at Kairik market that day but learnt from other people later that drunken youths from Kairik village had a fight with the police after a snooker game.

45. He said they were on site where the Jet A1 fuel was held from Friday 12th July, Saturday 13th July, Sunday 14th July and Monday 15th July 1996 until the situation was under control. He said because of the threats from the landowners after the meeting fell through with PJV, there was heavy police presence at the mine site. He denied that he was involved in the raid and said there was no raid at Kairik village that day as alleged by the plaintiff and his witnesses. He said police had only gone to stop drunken youths from causing trouble at the market.

46. In my view, the evidence of the first defendant seems pretty much straight forward but as I have mentioned above, there are one or two observations I wish to make in relation to his evidence. The first one is in relation to his denial of a raid at the plaintiff’s premises. I do not accept his claim that there was no raid for the simple reason that there is overwhelming evidence from the plaintiff and his witnesses that there was a raid. And he seemed to acknowledge that fact in his evidence when he said that he drove past Kairik market with the four reservists on the afternoon of Friday 12th July 1996 and saw that there were enough policemen to attend to the "incident" and drove on to the airport. As he drove on to the airport, he did not know that policemen went on to raid the plaintiff’s house and trade store. The second observation is that, he admitted driving past Kairik market where the alleged trouble between the drunken youths and police occurred. The admission of his presence at Kairik market on his way to the airport does not necessarily mean that he "master minded" the raid on the plaintiff’s premises. (Underlining is mine).

47. In cross examination, he denied that the raid was carried out to defuse threats made to the mine by locals. He said, even though there was heavy presence of police at the mine at that time, there neither was a raid by the police nor the security personnel from the mine. Reverting to what I said earlier, the onus of proof is on the party who makes an allegation against another. That means, the party making the allegation must lead evidence to establish it. In this case, the plaintiff alleges that the first defendant and security personnel of the second defendant joined and led policemen to raid his house and trade store. He must therefore, lead evidence to establish these allegations.

48. Counsel for the plaintiff has on a number of instances during cross examination attempted to get the first defendant to admit his involvement in the raid by making suggestions that he (first defendant) was present at the plaintiff’s premises on Friday 12th July 1996. The questions by counsel were premised on the fact that, as the first defendant was the security coordinator of the second defendant at the relevant time, he was the person who had organized and led policemen to raid the plaintiff’s premises. The following were his questions and answers of the first defendant during cross examination:

"Q: I put it to you that you took it upon yourself to organize police and went on a raid, is that true?

Q: I put to you that what you have said orally and in affidavit is not the correct version of what happened in 1996?

Q: I put to you that plaintiff and his witnesses say is the correct version?

49. With respect, these questions go against the rule on onus of proof where the plaintiff bears the onus of proving the allegations of the involvement of the first defendant and security personnel of the second defendant and not the other way around as attempted by counsel for the plaintiff here. He seeks to get admissions from the first defendant of his involvement. This is not on because as I observed earlier, there is no evidence from the plaintiff or his witnesses establishing that the first defendant had organized and led policemen and security personnel of the second defendant to raid his premises. As I further observed above, their assertions are based on assumptions. Thus, I give no consideration to the answers given by the first defendant.

50. To sum up the evidence, from what the first defendant said and what the plaintiff and his witnesses have said, I find that, first there was a raid at the plaintiff’s premises. Secondly, it was on Friday 12th July 1996 between 4:00 and 4:30 pm despite the plaintiff’s conflicting evidence on the date. This is because there is evidence from the plaintiff’s witnesses verifying that the raid occurred on that date. Thirdly, I find that the police conducted the raid but I am unable to find that the first defendant and security personnel of the second defendant were also involved in the raid either actively or passively. I am also unable to find the cause of the raid because whilst the first defendant asserted that it was sparked by drunken youths, having a go at the police at Kairik market, there is no evidence from the police involved in the raid to verify this assertion.

51. Further, the plaintiff and his witnesses have denied that drunken youths were the cause of the raid. Furthermore, there is no evidence that it occurred to defuse threats made by the local landowners of Porgera mine, more so the plaintiff as a trouble maker. On the other hand, there is evidence from the first defendant that he and four reservists secured the airport on Friday 12th March 1996 as part of a major operation due to threats of uprising by local landowners of Porgera mine which lasted for almost four days from Friday 12th March 1996 to Monday 19th March 1996. Thus, the raid on the plaintiff’s premises had no relation to the assertions of the first defendant that drunken youths and police had a go at each other. Finally, I find that the first defendant drove past Kairik village and the plaintiff’s house on the way to the airport on Friday 12th July 1996 around the time the raid occurred. This is because that is the only route to get to the airport but was not involved in the raid.

52. For the foregoing discussions, I find that the plaintiff has not established on the balance of probabilities that the first defendant and security personnel of the second defendant were the persons who raided his house and trade store along with policemen. The end result is, the plaintiff has not discharged the onus of proof bestowed upon him and therefore, the action must fail. Costs shall follow the event and time abridged.

_____________________________
Paulus Kunai & Co Lawyers: Lawyers for the Plaintiff
Blake Dawson Lawyers: Lawyers for the Defendants

National Court of Papua New Guinea

Meya v Pundari [2010] PGNC 28; N3973 (19 March 2010)