Hai v Walo [2012] PGNC 11; N4564 (30 January 2012)

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

ALBERT HAI for himself and on behalf of 21 MEMBERS of Mununga Village, Mt. Hagen, WHP
Plaintiffs

DAMAGES - Assessment of - Trespass - Trespass to property - Police raid - Unlawful destruction and looting of property - Assault and unlawful detention - Frustration, distress and mental anguish - Special damages - General damages - Economic loss - Exemplary damages.

EVIDENCE - Damages - Proof of - Corroboration - Production of photographs - Lack of receipts of payment - Lack of independent valuation report - 10% reduction in award for contingencies and depreciation after allowing for inflation of 30%.

This matter arose out of a police raid at Mununga village in Muglamp area of the Dei District in the Western Highlands Province between 15th and 16th August 1997 which affected twenty two plaintiffs. Default judgment was entered against the defendants on 01st August 2006. The trial was on assessment of damages. The plaintiffs relied on their affidavits and produced photographs to corroborate the description and value of property loss but did not produce receipts of payment and independent valuation report to verify the value of property loss. Two of the plaintiffs were assaulted during the raid by policemen and locked up at Mt Hagen police station cell. One was charged and subsequently released on bail while it was unclear if the other charged. However, he was subsequently released on bail. They claimed special damages, general damages, economic loss, exemplary damages, interest and costs.

1. Despite the lack of receipts of payment and independent valuation report, there was undisputed evidence establishing the plaintiffs' loss and reasonable damages was assessed after reduction of 10% for contingencies and depreciation and allowance of 30% for inflation.

3. General damages was assessed at K1,000.00 for plaintiff Nokopa Hai and K1,000.00 for plaintiff Gary Nidel for pain and suffering for unlawful assault.

4. General damages was assessed at K1,000.00 for plaintiff Nokopa Hai and K2,000.00 for plaintiff Gary Nidel for pain and suffering for unlawful detention.

5. No award was made for economic loss as neither was evidence nor submissions led and made in support of it.

6. General damages for disappointment, frustration, mental breakdown and anguish was assessed at K1,000.00 for each plaintiff giving a total sum of K22,000.00.

7. The first defendants were ordered to pay exemplary damages in the total sum of K11,000.00 with each to pay K5,500.00.

8. Interest was assessed at 8% from the date of issue of writ to the date judgment on the total sum awarded as special damages of K122,568.12 and a sum of K137,281.46 was awarded.

9. The defendants shall pay the plaintiffs' costs of the proceedings to be taxed if not agreed.

Yange Langan & 58 Ors -v- The State (1995) N1369
Jonathan Mangape Paraia & Ors -v- The State & Ors (1995) N1243
Peter Wanis -v- Fred Sikiot & The State (1995) N1350
Steven Tingke & 23 Ors -v- Commissioner of Police & The State: WS No 1534 of 2000 (Unnumbered & Unreported Judgment of 17th January 2012)
Kolaip Palapi -v- Sergeant Poko & The State (2001) N2247
Andak Kupil -v- The State [1983] PNGLR 350
Lin Wan Xin -v- Wau Yanhang (2001) N2160
Shelly Kupo -v- MVIL (2002) N2282
Roslyne Cecil Kusa -v- MVIL (2003) N2328
Andrew Moka -v- MVIL (2004) SC 729
Lapun Aine & 21 Ors -v- The State (2011) N4389
Pepena -v- Malabus & The State (1991) N960
Pawa Kombea -v- Semal Peke [1994] PNGLR 572

Brian Hodson -v- Papua New Guinea [1985] PNGLR 303
Joe Naguwean -v- University of Papua New Guinea [1992] PNGLR 367
Kinsim Business group Inc -v- Joseph Homp Wapi, John Kalaut & The State (1996) N1634
John Tuink Salamon & Ors -v- The State & 2 Ors (1994) N1272
Aimon Aure & Ors -v- The State & Ors (1995) N2146
James Koimo -v- The State [1995] PNGLR 535

1. MAKAIL, J: This matter arises out of a police raid at Mununga village in Muglamp area of the Dei District in the Western Highlands Province between 15th and 16th August 1997 affecting twenty two plaintiffs. Default judgment was entered against the defendants on 01st August 2006.

2. All the plaintiffs have filed affidavits. I should say at this stage that the defendants elected not to file affidavits and did not turn up at trial to defend the action despite being advised of the trial date. As a result, the trial on assessment of damages proceeded ex parte. After completion of trial, a further opportunity was given to them to put in written submissions to assist the Court in its consideration on quantum, but they still failed. Thus, the Court only has submissions from the plaintiffs.

3. The plaintiffs through the principal plaintiff, Albert Hai commenced proceedings for and behalf of himself and twenty one others whose details are pleaded at paragraph 7 of the amended statement of claim. They are:

1. Tenis Koim	12. Pora Pagum
2. Gary Nindel	13. Kagl Rolpaua
3. Hepi Korowa	14. Joseph Aringa
4. Kingal P Doa	15. Tepra Pu
5. Tet Tengen	16. Albert Hai
6. Randi Benga	17. Simbil Pu
7. Meting Rokopa	18. Gupa Nui
8. Francis Tut	19. Demp Yangen
9. Peni Kei	20. Tar Pu
10. Winis Gupa	21. Koim Kama
11. Nokopa Hai	22. Yalda Kewa

4. Each plaintiff has submitted a list of what each has lost during the raid. Altogether, they claim the following reliefs:

(e) Interest pursuant to Judicial Proceedings (Interest on Debts and Damages) Act; and

5. The plaintiffs rely on the following affidavits which were tendered and given exhibit numbers for identification reasons:

(a) Affidavit of Albert Hai sworn on 17th January 2005 and filed on 14th February 2005, (exhibit "P1");

(b) Affidavit of Tenis Koim sworn on 21st June 2000 and filed on 28th October 2002, (exhibit "P2");

(d) Affidavit of Garry Nindel sworn on 21st June 2000 and filed on 28th October 2002, (exhibit "P4");

(e) Affidavit of Hepi Korowa sown on 21st June 2000 and filed on 28th October 2002, (exhibit "P5");

(g) Additional affidavit of Hepi Korowa sworn and filed on 22^nd February 2005, (exhibit "P6");

(h) Affidavit of Kingal P. Doa sworn on 21st June 2000 and filed on 28th October 2002, (exhibit "P7");

(i) Affidavit of Tet Tengen sworn on 21st April 2002 and filed on 14th January 2005, (exhibit "P8");

(j) Affidavit of Remdi Benga sworn on 21st June 2000 and filed on 28th October 2002, (exhibit "P9");

(k) Affidavit of Meting Rokopa sworn on 21st June 2000 and filed on 28th October 2002, (exhibit "P10");

(l) Affidavit of Francis Tut sworn on 04th April 2002 and filed on 14th February 2005, (exhibit "P11");

(n) Affidavit of Winis Gupa sworn on 21st June 2000 and filed on 28th October 2002, (exhibit "P13");

(o) Affidavit of Nokopa Hai sworn on 21st June 2000 and filed on 28thOctober 2002, (exhibit "P14");

(p) Affidavit of Pora Pangun sworn on 21st June 2000 and filed on 28th October 2002, (exhibit "P15");

(q) Affidavit of Kagl Rolpawa sworn on 22nd August 2002 and filed on 14th February 2005, (exhibit "P16");

(s) Affidavit of Joseph Aringa sworn on 25th January 2005 and filed on 14th February 2005, (exhibit "P17");

(t) Affidavit of Tepra Pu sworn on 21st June 2000 and filed on 28th October 2002, (exhibit "P18");

(u) Affidavit of Simbil Pul sworn on 21st June 2000 and filed on 28th October 2002, (exhibit "P19");

(v) Affidavit of Gupa Nui sworn on 21st June 2000 and filed on 28th October 2002, (exhibit "P20");

(x) Affidavit of Demp Yangen sworn on 21st June 2000 and filed on 28th October 2002, (exhibit "P21");

(y) Affidavit of Tar Pu sworn on 21st June 2000 and filed on 28th October 2002, (exhibit "P22");

(z) Affidavit of Koim Kama sworn on 21st June 2000 and filed on 28th October 2002, (exhibit "P23")

(aa) Affidavit of Yalda Kewa sworn on 16th February 2005 and filed 17th February 2005, (exhibit "P24");

(bb) Affidavit of Clara Simbil sworn on 21st June 2000 and filed on 14th February 2005, (exhibit "P25");

(cc) Affidavit of Wendy Hai sworn on 15th February 2005 and filed on 17th February 2005, (exhibit "P26");

(dd) Affidavit of Pepi Turinki sworn on 20th September 1999 and filed on 28th October 2002, (exhibit "P27"); and

(ee) Affidavit in response of Albert Hai sworn on 17th February 2004 and filed on 20th February 2004, (exhibit "P28").

6. Mr Hai's affidavit (exhibit "P1") annexed about 20 photographs depicting scenes after the raid. These photographs showed slaughtered pigs, cassowaries, felled banana trees, broken guitar, radios, sewing machine, furniture, cooking utensils, remains of a burnt house, clothes etc.

7. Based on the affidavits and the photographs, I find the undisputed facts are as follows, between 15th and 16th August 1997, an unspecified number of policemen from Muglamb rural police station with reinforcement from Mt Hagen police station went to Mununga village in Dei District. They were led by the first defendants. They arrived in a number of motor vehicles including a Toyota Land-cruiser utility bearing registration no: ZGC-585 white in colour and raided the village. The reason for entering and raiding the village was, they were in pursuit of thieves of coffee machine and coffee cherries from the nearby Gumanch coffee plantation. They broke and entered the plaintiffs' houses and destroyed and/or looted personal items of various description. They burnt down houses, killed domesticated animals such as pigs, chickens, goats, etc and cut down and uprooted food crops such as banana trees, sugar canes, kaukaus, potatoes and cash crops such as coffee trees, etc.

8. The plaintiffs Nokopa Hai and Gary Nindel were assaulted by the policemen. Nokopa Hai was assaulted while waiting at the local road side bus stop to sell coffee cherries to coffee buyers. The reason for the assault was, he stole coffee cherries from Gumanch coffee plantation. He was taken to Mt Hagen police station and locked up. He was subsequently released after several hours in detention on police bail of K100.00. It is unclear from his evidence if he was charged and brought before a Court.

9. As for Gary Nindel, he was assaulted when he tried to intervene and stop the policemen from looting personal items and domesticated animals such as pigs at the village. He was taken to Gumanch coffee plantation police post and charged. It is unclear from his evidence what the charge was. He was subsequently taken to Mt Hagen police station and locked up for three days and later released on police bail of K70.00. It is also unclear if he was brought before a Court and if the Court had made any decision in relation to the charge.

10. As a result of the raid, the plaintiffs seek monetary compensation against the defendants. They want the defendants to compensate them for the loss. The general rule is that, a party should nearly as possible get the sum of money which will put him in the same position as he would have been in if he had not sustained the wrong for which he is now getting compensation. On the same breath, a party who seeks compensation is obliged by law to prove his damages, even in cases where he has obtained default judgment.

11. In the case of Yange Langan & 58 Others -v- The State (1995) N1369, the Court held the minimum requirement in the police raid type of case is that, the plaintiffs should prove their damages and not merely come to Court and say, "I am the victim of the police raid, give me that amount of compensation" as was also held in the case of Jonathan Mangope Paraia & Ors -v- The State & Ors (1995) N1243.

12. There must be some evidence corroborating the evidence of loss. Evidence of receipts of payment and independent valuation report are relevant to establish the description and value of property loss: see Peter Wanis -v- Fred Sikiot & The State (1995) N1350. However, the absence or lack of such evidence, especially an independent valuation report does not preclude the Court from awarding reasonable damages: see my judgment in Steven Tingke & Ors -v- Commissioner of Police & The State: WS No 1534 of 2000 (Unnumbered & Unreported Judgment of 17th January 2012). Further, the evidence of loss must not be vague or has the potential of false claim: see Kolaip Palapi -v- Sergeant Poko & The State (2001) N2247.

13. Special damages require strict proof. In the present case, the plaintiffs have pleaded in the amended statement of claim and further deposed in their respective affidavits, evidence of the description and value of the property loss. Each plaintiff's claim is set out below:

QTY	ITEMS	UNIT PRICE (K)	TOTAL (K)
1 x	House		K 1 200.00
1 x	Sonny Radio Cassette 4 Speaker		K 450.00
1 x	Hurricane lamp (German made)		K 450.00
1 x	Copper dish		K 60.00
	Assorted clothing		K 42.00
	Damage door		K 500.00
5 x	Banana trees	K40.00	K 200.00
	Other personals & house hold properties		K 300.00
	Assorted cooking and eating utensils		K 300.00
	Traditional costumes		K 470.00
3 x	Possum fur	K20.00	K 60.00
1 x	Coleman lamp		K 120.00
1 x	Pig		K 800.00
3 x	Pigs	K600.00	K1,800.00
		Total	K7,232.00

QTY	ITEMS	UNIT PRICE (K)	TOTAL (K)
1 x	Living modern house		K3,000.00
2 x	Mattress	K35.00	K 70.00
1 x	5 litres Grammoxone		K 75.00
3 x	Pots respectively	K25.00 K20.00 K15.00	K 60.00
	Kitchen ware		K 280.00
1 x	Plastic bucket		K 15.00
	Damage to door		K 150.00
1 x	Pair of stockman shoe		K 250.00
	Value of household items		K 450.00
3 x	Copper dish	K20.00	K 60.00
2 x	Hurricane lamp	K25.00	K 50.00
		Total	K4,330.00

QTY	ITEMS	UNIT PRICE (K)	TOTAL (K)
2 x	Mattresses	K80.00	K 160.00
3 x	Pots	K35.00,K30.00 & K25.00	K 90.00
2 x	Copper dish	K40.00	K 80.00
1 x	Hurricane lamp		K 19.00
1 x	Pressure pump		K 450.00
2 x	Bush knives	K20.00	K 40.00
1 x	Pair of stockman shoes		K 250.00
2 x	Bed covers	K75.00	K 150.00
4 x	Highlands bilums	K110.00	K 440.00
	Assorted Clothing		K 400.00
	Cash money		K 170.00
1 x	Large pig		K1,200.00
1 x	Big pig		K1,000.00
2 x	Medium pigs	K600.00	K1,200.00
4 x	Pigs	K300.00	K1,200.00
52 x	Chicken	K 20.00	K1,040.00
1 x	Coleman lamp	K 20.00	K 350.00
2 x	Tiger blankets	K100.00	K 200.00
2 x	Double mattress	K 80.00	K 160.00
1 x	Eskimo blankets		K 99.00
	Eating cooking utensils		K 280.00
		Total	K8,978.00

QTY	ITEMS	UNIT PRICE (K)	TOTAL (K)
1 x	Modern kunai house		K3,000.00
2 x	Pigs	K1,000.00 & K800.00	K1,800.00
	Assorted clothing		K 500.00
40	Banana trees	K40.00	K1,600.00
1 x	Pressure pump		K 450.00
2 x	Coffee saws	K45.00	K 90.00
1 x	5 litres grammoxone		K 75.00
4 x	Bush knives	K15.00	K 60.00

	Other assorted household items		K 600.00
1 x	Coffee machine		K 850.00
		Total	K9,025.00

QTY	ITEMS	UNIT PRICE (K)	TOTAL (K)
1 x	Damage to door		K 150.00
2 x	Copper dishes	K40.00	K 80.00
1 x	Mattress (single)		K 50.00
1 x	Hurrican lamp		K 50.00
3 x	Pots	K30.00,K30.00, & K20.00	K 80.00
1 x	Tea pot		K 30.00
2 x	Tiger blankets	K120.00	K 240.00
	Household items & tools		K 500.00
2 x	Banana trees	K40.00	K 80.00
2 x	Pigs	K700.00 & K900.00	K1,600.00
		Total	K2,860.00

QTY	ITEMS	UNIT PRICE (K)	TOTAL (K)
1 x	Modern kunai house		K3,000.00
1 x	Pig		K1,000.00
1 x	Dish Copper		K 40.00
3 x	Axes	K30.00, K25.00 & K20.00	K 75.00
4 x	Bush knives	K15.00	K 60.00
	Assorted Clothing		K 600.00
15 x	Banana trees	K40.00	K 600.00
12 x	Coffee trees	K100.00	K1,200.00
	Other personal & household items including eating & cooking utensils, sleeping gear, tools etc.		K 500.00
		Total	K7,075.00

QTY	ITEMS	UNIT PRICE (K)	TOTAL (K)
1 x	Guitar		K 300.00
2 x	Banana trees	K40.00	K 80.00
1 x	Umbrella		K 35.00
	Damage to door of living house		K 50.00
1 x	Cooking pot		K 30.00
2 x	Bush knives	K20.00	K 40.00
1 x	Cooper dish		K 40.00
1 x	Big pig		K 800.00
1 x	Axe		K 50.00
		Total	K1,425.00

QTY	ITEMS	UNIT PRICE (K)	TOTAL (K)
2 x	Banana trees	K40.00	K 80.00
2 x	Copper dish	K40.00	K 80.00
2 x	Cooking pots	K45.00	K 90.00
	Damage to door of living house		K 150.00
1 x	Axe		K 70.00
2 x	Bush knife	K30.00	K 60.00
1 x	Hurricane lamp		K 30.00
1 x	Kettle (teapot)		K 30.00
3 x	Spades	K40.00	K 120.00
1 x	Big Pig		K1,000.00
5 x	Coffee trees	K100.00	K 500.00
		Total	K2,210.00

QTY	ITEMS	UNIT PRICE (K)	TOTAL (K)
1 x	Pig		K1,200.00
1 x	Coffee puller	K40.00	K 80.00
2 x	Copper Dish	K40.00	K 80.00
	Assorted clothing		K 500.00
1 x	Bush knife		K 15.00
1 x	Pocket knife		K 50.00
1 x	Mattress		K 120.00
3 x	Cooking pots	K30.00, K25.00 & K20.00	K 75.00
1 x	5 litres plastic container		K 20.00
1 x	Door of living house		K 150.00
		Total	K3,060.00

QTY	ITEMS	UNIT PRICE (K)	TOTAL (K)
3 x	Pigs	K1,000.00	K3, 000.00
20 x	Banana trees	K 40.00	K 800.00
2 x	Coffee saw	K 45.00	K 90.00
2 x	5 litres grammoxone	K120.00	K 240.00
	Tools and other equipment		K 800.00
1 x	Coleman lamp	K450.00	K 450.00
1 x	20 litres round up		K 500.00
1 x	200 m extension cord		K 250.00
1 x	Konica camera		K 280.00
1 x	Pair of Rossi Stockman shoes		K 275.00
1 x	CP3 pump		K 450.00
1 x	Yamaha guitar		K 480.00
1 x	Refrigerator		K 1,340.00
1 x	Akai radio cassette		K 450.00
1x	Willow cooler		K 420.00
	Robin generator & coffee pulper (set)		K 7,600.00
		Total	K17,425.00

QTY	ITEMS	UNIT PRICE (K)	TOTAL (K)
1 x	Living modern kunai house		K 3,000.00
1 x	Coffee pulper		K 850.00
1 x	Pressure pump		K 450.00
1 x	Sewing machine		K 300.00
3 x	Pots	K40.00,K30.00 & K25.00	K 95.00
3 x	Copper dishes	K 40.00	K 120.00
	Kitchen ware including cooking and eating utensils		K 350.00
3 x	Mattress	K90.00, K90.00, & K60.00	K 240.00
2 x	Tiger blankets	K 80.00	K 160.00
	Total value of assorted clothing and household items		K 800.00
3 x	Axes	K50.00	K 150.00
3 x	Spades	K30.00	K 90.00
8 x	Banana trees	K 40.00	K 320.00
10 x	Coffee trees	K100.00	K1 ,000.00
4 x	Bilums	K100.00	K 400.00
3 x	Pigs	K800.00, K700.00 & K500.00	K 2,000.00
	Cash monies		K 50.00
4 x	Small cooking pots	K10.00	K 40.00
		Total	K10,613.00

QTY	ITEMS	UNIT PRICE (K)	TOTAL (K)
4 x	Pigs	K1000.00, K600.00, K500.00 & K400.00	K2,500.00
1 x	Cassowary		K 500.00
4 x	Copper dishes	K40.00	K 160.00
2 x	Mattresses	K50.00	K 100.00
4 x	Rainbow blankets	K30.00	K 60.00
	Family clothing (assorted)		K 500.00
6 x	Banana trees	K 40.00	K 240.00
2 x	Spades	K 20.00	K 40.00
1 x	Bush knife		K 50.00
		Total	K 3,770.00

QTY	ITEMS	UNIT PRICE (K)	TOTAL (K)
1 x	Living house		K3,000.00
3 x	Pigs respectively	K800.00, K700.00 & K500.00	K2,000.00
	Kitchen ware		K 280.00
2 x	Large mattresses	K 60.00	K 120.00
	Assorted clothing		K 600.00
2 x	Axes respectively	K20.00 & K30.00	K 50.00
2 x	Bush knives	K 15.00	K 30.00
2 x	Copper dishes	K 40.00	K 80.00
2 x	Guitars	K200.00	K 400.00
2 x	Hurrican lamps	K 45.00	K 90.00
	Other houseold items		K 400.00
		Total	K7,050.00

QTY	ITEMS	UNIT PRICE (K)	TOTAL (K)
4 x	Pigs	K1200.00, K1000.00, K400.00	K 3,100.00
1 x	Pressure pump		K 450.00
2 x	Mattress	K98.00	K 196.00
3 x	Tiger Blankets	K90.00	K 270.00
	Assorted clothing		K 800.00
1 x	Axe		K 50.00
2 x	Bush knives	K30.00	K 60.00
12 x	Banana trees	K40.00	K 360.00
10 x	Coffee trees	K100.00	K 1,000.00
2 x	Copper dish	K 40.00	K 80.00
		Total	K 6,366.00

QTY	ITEMS	UNIT PRICE (K)	TOTAL (K)
1 x	Coffee pulper		K 850.00
1 x	Pressure herbicide pump		K 450.00
2 x	Pots	K35.00	K 70.00
1 x	Teapot (kettle)		K 40.00
2 x	Copper dish	K30.0	K 60.00
	Kitchenware		K 550.00
1 x	Double mattress		K 100.00
2 x	Large blankets	K90.00	K 180.00
	Family clothing assorted		K 600.00
1 x	Spade		K 30.00
3 x	Bush knives	K30.00	K 90.00
13 x	Banana trees	K40.00	K 520.00
1 x	5 ltr grammoxone		K 70.00
2 x	Bundles of sugarcane	K30.00	K 60.00
2 x	Pigs	K700.00 & K500.00	K1,200.00
		Total	K 4,870.00

14. There is no further evidence corroborating the evidence of the plaintiffs in relation to the description and value of property loss. For example, there are no receipts of payments to corroborate the evidence of the plaintiffs that they lost household items of such description and value during the raid by the policemen and also for the animals, food and cash crops. Furthermore, there is no independent valuation report produced to verify the description and value of property loss of each plaintiff. However, I do not believe the plaintiffs' claims are false or exaggerated. To my mind, the photographs that have been tendered verify the plaintiffs' evidence that they have lost substantial property during the raid and therefore, their claims are genuine. Further, to my mind, the value given by each plaintiff is an estimate of the loss.

15. In the circumstances, I accept the value of each item given by the plaintiffs in each of their claims. I accept a dwelling house made of bush material would range between K500.00 and K3,000.00 depending on the size and material used in the building it. I also accept a small pig (not piglet) would cost between K200.00 and K500.00 and a big one would cost between K800.00 and K2,000.00. I accept the value of each household item as being reasonable.

16. In his submissions, counsel for the plaintiffs further submitted the Court should take into account inflation. I accept his submission. Following the cases of Andak Kupil -v- The State [1983] PNGLR 350, Lin Wan Xin -v- Wau Yanhang (2001) N2160, Shelly Kupo -v- MVIL (2002) N2282, Roslyne Cecil Kusa -v- MVIL (2003) N2328, Andrew Moka -v- MVIL (2004) SC 729 and Lapun Aine & 21 Ors -v- The State (2011) N4389, I will increase the awards for each plaintiff by 30 % for inflation.

17. Counsel further submitted 10% to 20% reduction be made to take into account contingencies and depreciation. I will allow 10% for contingencies and depreciation. In the final analysis, allowing 30% for inflation and reducing it by 10% for contingencies and depreciation leaves 20% as the allowable rate. Based on 20%, each plaintiff's claim is assessed and damages awarded as follows:

1.	Tenis Koim K7,232.00 less 10% = K6,508.80 plus 20%	= K 7,810.56
2.	Gary Nindel K4,330.00 less 10% = K3,897.00 plus 20%	= K 4,676.40
3.	Hepi Korowa K3,680.00 less 10% = K3,312.00 plus 20%	= K 3,974.40
4.	Kingal P Doa K8,978.00 less 10% = K8,080.20 plus 20%	= K 9,696.24
5.	Tet Tengen K2,480.00 less 10% = K2,232.00 plus 20%	= K 2,678.40
6.	Randi Benga K920.60 less 10% = K828.00 plus 20%	= K 993.60
7.	Meting Rokopa K1,970.00 less 10% = K1,773.00 plus 20%	= K 2,127.60
8.	Francis Tut K9,025.00 less 10% = K8,122.50 plus 20%	= K 9,747.00
9.	Peni Kei K1,400.00 less 10% = K1,260.00 plus 20%	= K 1,512.00
10.	Winis Gupa K2,860.00 less 10% = K2,574.00 plus 20%	= K 3,088.80
11.	Nokopa Hai K7,075.00 less 10% = K6,367.50 plus 20%	= K 7,641.00
12.	Pora Pagum K1,425.00 less 10% = K1,282.50 plus 20%	= K 1,539.00
13.	Kagl Rolpaua K2,210.00 less 10% = K1,989.00 plus 20%	= K 2,386.80
14.	Joseph Aringa K3,750.00 less 10% = K3,375.00 plus 20%	= K 4,050.00
15.	Tepra Pu K3,060.00 less 10% = K2,754.00 plus 20%	= K 3,304.80
16.	Albert Hai K17,425.00 less 10% = K15,682.50 plus 20%	= K18,819.00
17.	Simbil Pu K10,613.00 less 10% = K9,551.70 plus 20%	= K11,462.04
18.	Gupa Nui K3,770.00 less 10% = K3,393.00 plus 20%	= K 4,071.60
19.	Demp Yangen K7,050.00 less 10% = K6,345.00 plus 20%	= K 7,614.00
20.	Tar Pu K6,366.00 less 10% = K5,729.40 plus 20%	= K 6,875.28
21.	Koim Kama K4,870.00 less 10% = K4,383.00 plus 20%	= K 5,259.60
22.	Yalda Kewa K3,000.00 less 10% = K2,700.00 plus 20%	= K 3,240.00
		------------------
Total		K122,568.12
		------------------

19. The undisputed evidence is that, the cause of the raid was allegation of theft of coffee machine and coffee cherries from Gumanch coffee plantation by villagers from Mununga. The person singled out was Nokopa Hai. He was assaulted by the policemen on 15th August 1997 and the next day, 16th August, a massive raid was conducted by policemen at the village. There is no medical report to verify if the plaintiff sustained any injury and extent of it. In the absence of such evidence, I infer that he did not sustain injury serious enough to hospitalise him. The same can be said of the plaintiff Gary Nindel.

20. In the case of Pepena -v- Malabus & The State (1991) N960, the Court awarded K2,000.00 to the plaintiff for being assaulted by policemen, K600.00 for false imprisonment and K1,000.00 for exemplary damages to the plaintiff. From the assault, he suffered bruises and lacerations to the head and face, shoulder, elbow, knee and foot. At trial, he still had tenderness in his foot and back.

21. In the present case, as there is no further evidence from the plaintiffs detailing the type of injuries they received from the assaults and medical report to verify the extent of the injuries, I award K1,000.00 to each plaintiff.

22. The plaintiff Nokopa Hai was taken to Mt Hagen police station and locked up. He was subsequently released after several hours in detention on police bail of K100.00. It is unclear from his evidence if he was charged and brought before a Court. As for Gary Nindel, following the assault, he was taken to Gumanch coffee plantation police post and charged. It is unclear from his evidence what the charge was. He was subsequently taken to Mt Hagen police station and locked up for three days and was later released on police bail of K70.00. It is also unclear if he was brought before a Court and if the Court had made any decision in relation to the charge.

23. Again in Pepena's case, the Court awarded K600.00 to the plaintiff who was falsely imprisoned by the police. In Pawa Kombea -v- Semal Peke [1994] PNGLR 572, the Court awarded K4,000.00 to the plaintiff for false imprisonment, which was a direct result of the instigation by the defendant.

24. In the instant case, on the evidence, I am satisfied the police have unlawfully detained these two plaintiffs. Therefore, I accept that they should be accordingly compensated. In the light of the cases of Pepena (supra) and Pawa Kombea (supra), I award K1,000.00 as a reasonable compensation to the plaintiff Nokopa Hai and K2,000.00 to the plaintiff Gary Nindel since he was detained longer than Nokopa Hai in the police cell.

25. The plaintiffs also make a claim for economic loss but have not led any evidence to prove it. Further, their counsel has made no submission on it. For these reasons, I make no award for economic loss.

General damages for disappointment, frustration, mental breakdown and anguish

26. The further claim for damages is for disappointment, frustration, mental breakdown and anguish. The Courts have awarded general damages for frustration, distress and hardship in the past and some of these cases are Brian Hodson -v- Papua New Guinea [1985] PNGLR 303 and Joe Naguwean -v- University of Papua New Guinea [1992] PNGLR 367.

27. The facts of this case depict a case of mass destruction of property. Peoples' homes were destroyed and household items destroyed and looted. Food and cash crops destroyed and looted. It was like a natural disaster had hit their village, perhaps a cyclone of 100 km an hour or a tidal wave. Some of the plaintiffs were not at home. When they returned home, they were shocked to see their houses burnt down or household items destroyed or looted, their pigs slaughtered, their banana trees chopped down, etc. I can image the feeling at that time; the feeling of helplessness, despair, sorrow and sadness. It must have also been painful for them to see all that they had worked hard to accumulate and save over the years vanish like that.

28. This Court cannot turn a blind eye on this people for the pain and suffering they had undergone at that time. They must be compensated and I believe an award under this head would at least ease some of the pain and suffering and put them on a road to recovery, of course bearing in mind the wrong happened some 15 years ago. I am satisfied the plaintiffs have suffered distress and mental anguish by the unlawful actions of the policemen led by the first defendants. I consider a fair and reasonable award is K1,000.00 for each plaintiff. That gives a total sum of K22,000.00 which the defendants must pay.

29. The Courts have awarded exemplary and punitive damages against the State or individual policemen in most police raid cases that come before the Court. In the case where individual policemen were identified, exemplary or punitive damages have been awarded against them as in the case of Kinsim Business group Inc -v- Joseph Homp Wapi, John Kalaut & The State (1996) N1634. Others are John Tuink Salamon & Ors -v- The State & 2 Ors (1994) N1272 where Woods, J awarded K26,000.00 against individual policemen named in the writ of summons, Aimon Aure & Ors -v- The State & Ors (1995) N2146, where Defence Force officers led the raid were ordered to pay exemplary damages of K71,500.00 and James Koimo -v- The State [1995] PNGLR 535, where the Court held that an assessment of exemplary damages in cases involving police raids on villages must take account of the nature and scale of the police operation and the extent of the destruction or loss of property.

30. The plaintiffs' counsel submitted K20,000.00 should be awarded to each plaintiff. This would give a total of K440,000.00 as a reasonable amount for exemplary damages and should be paid by the third defendant (the State). With respect, I do not agree. I am of the view if there is to be any award of exemplary damages, it should be ordered and personally borne by the policemen who instigated and committed the unlawful acts. I hold this view because I strongly believe and feel that tax payers' money should not be wasted on paying for actions of undisciplined policemen. Tax payers' money should be spent on more important and needed services such as health and education services which will meaningfully benefit the people of this country. That K440,000.00 that the plaintiffs' counsel has submitted should be put to the betterment and advancement of people's livelihood and let those undisciplined policemen foot the bill themselves. By doing so, that will teach them a lesson not to engage in such unlawful acts in future and also a warning to other policemen to refrain from engaging in such unlawful acts.

31. In the instant case, two policemen, namely Samson Walo and Andrew Kapum have been identified and named as first defendants in the proceedings. In the circumstances, I order each of them to pay K5,500.00, giving a total sum of K11,000.00 as exemplary damages.

32. The plaintiffs claim interest at 8% per annum in accordance with the Judicial Proceedings (Interest on Debts and Damages) Act, Ch 52. Awarding of interest is a discretionary matter. It may be awarded at 8% or less, on the whole or part of the judgment debt and from when the cause of action arose to the date of judgment or any time the Court determines as appropriate in a given case. I have decided to award interest at 8% on the total sum awarded as special damages, which is K122,568.12 from the date of issue of writ of 21st January 1998 to the date of judgment, which is today. The total number of days is 5,111 and at a rate of K26.86 per day gives K137,281.46. Therefore, the plaintiffs are awarded pre-judgment interest of K137,281.46.

2. The defendants shall pay general damages of K1,000.00 to the plaintiff Nokopa Hai and K1,000.00 to the plaintiff Gary Nidel for pain and suffering for unlawful assault.

3. The defendants shall pay general damages of K1,000.00 to the plaintiff Nokopa Hai and K2,000.00 to the plaintiff Gary Nidel for pain and suffering for unlawful detention.

5. The defendants shall pay general damages for disappointment, frustration, mental breakdown and anguish in the total sum of K22,000.00

6. The first defendants shall pay exemplary damages in the total sum of K11,000.00, with each to pay K5,500.00.

7. The defendants shall pay interest at 8% from the date of issue of writ to the date judgment of K137,281.46.

8. The defendants shall pay the plaintiffs' costs of the proceedings to be taxed if not agreed.

Lawyers for the Plaintiffs: Paulus Dowa Lawyers
Lawyers for the Defendants: Solicitor-General:

National Court of Papua New Guinea

Hai v Walo [2012] PGNC 11; N4564 (30 January 2012)