Kwialu v Dage [2016] PGNC 135; N6270 (4 May 2016)

N6270

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO. 372 OF 2008

KANGUAL KWIALU
Plaintiff

V

SENIOR SERGEANT DUMOP DAGE
First Defendant

CONSTABLE BILL MOIHE
Second Defendant

CONSTABLE BOBBY RAZEYE
Third Defendant

CONSTABLE SHARTO ADILAWA
Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Madang: Cannings J
2015:10^th March, 11 August,
2016: 4 May

DAMAGES – assessment of damages for breaches of human rights – liability established at trial – search of retail premises and seizure of stock in trade – breach of right to freedom from arbitrary search and entry (Constitution, Section 44) – breach of right of protection against unjust deprivation of property (Constitution, Section 53).

The plaintiff succeeded at a trial in establishing liability against the State, which was held vicariously liable for the unlawful actions of members of a Police squad who raided the plaintiff’s premises, a licensed liquor outlet, and confiscated his property, 29 cartons of beer. The State was held responsible for breaches of two of the plaintiff’s human rights: the right to freedom from arbitrary search and entry (Constitution, Section 44) and the right of protection against unjust deprivation of property (Constitution, Section 53).The case returned to Court for an assessment of damages. The plaintiff claimed damages in four categories: (1) loss of income, K116,928.00; (2) loss of property, K3,800.16; (3) breach of the right to freedom from arbitrary search and entry, K5,000.00; and (4) breach of the right of protection against unjust deprivation of property, K5,000.00, a total claim of K130,728.16.

Held:

(1) The claim for loss of income was grossly exaggerated. K3, 108.80 was awarded.

(2) The claim for loss of property was exaggerated. K1, 658.80 was awarded.

(3) The claim for breach of the right to freedom from arbitrary search and entry was sound in principle. K3, 000.00 was awarded.

(4) The claim for breach of the right protection against unjust deprivation of property was sound in principle. K2, 000.00 was awarded.

(5) The total amount of damages awarded was K9, 767.60. Interest was awarded on that amount, in the sum of K6, 251.26. The total judgment sum was K16, 018.86.

Cases cited:

The following cases are cited in the judgment:

Application for Enforcement of Human Rights by Batley Isaiah (2013) N5421
Application for Enforcement of Human Rights by Jacob Okimbari (2013) N5420
Aquila Kunzie v NCD Police Mobile Squad (2014) N5701
Gerard Pain v The State (2014) N5604
Kangual Kwialu v Snr Sgt Dumop Dage & 4 Others (2013) N5388
Lance Kolokol v The State (2009) N3571
Leeway East Enterprise Ltd v Daniel Danaben (2013) N4951
Steven Kuefa v George Sunku (2012) N4855

TRIAL

This was a trial on assessment of damages for breaches of human rights.

Counsel:

T M Ilaisa, for the Plaintiff
S Maliaki, for the Defendants

4^th May, 2016

1. CANNINGS J: This is an assessment of damages for human rights breaches committed by members of the Police Force against the plaintiff Kangual Kwialu in Madang. The claim was dealt with on its merits, resulting in a judgment in favour of the plaintiff on 24 October 2013 (Kangual Kwialu v Snr Sgt Dumop Dage & 4 others (2013) N5388).
   

THE INCIDENT

2. The plaintiff was operating a liquor outlet at rented premises in the Ron Albert Rugby League Stadium near Modilon Road. He was licensed to sell liquor from those premises pursuant to an “Occasional Licence” issued by the Madang Liquor Licensing Commission. On 23 June 2005 the Police, led by the first defendant, Snr Sgt Dumop Dage, assisted by the second, third and fourth defendants, were on night patrol and formed the view that the plaintiff was trading in liquor in restricted hours, contrary to the conditions of his licence. They entered the premises without notice and without a search warrant, arrested the plaintiff, seized 29 cartons of beer (each carton containing 24 bottles of SP Lager) and took the plaintiff to Madang Police Station where he and the 29 cartons of beer were detained.

3. The plaintiff was charged by the Police with one count of keeping licensed premises open for sale of liquor during restricted hours contrary to Section 22 of the Madang Provincial Liquor Licensing Act. He was convicted on 25 July 2005 by the Madang District Court and given a three-month suspended sentence. He appealed to the National Court against his conviction and sentence, and on 26 May 2006 Justice Los upheld the appeal and quashed the conviction and sentence (Kangual Kwialu v The State, CRA No 1468 of 2005, 26.05.06, unreported). His Honour held that the District Court erred in law by convicting the plaintiff as there was no finding of fact that he was actually trading in liquor in restricted hours.
   
4. The plaintiff then commenced proceedings by writ of summons against the four members of the Police Force involved in the operation and the State, claiming damages for breach of human rights.
   

LIABILITY

5. The Court determined at the earlier trial that the plaintiff had established a cause of action against the fifth defendant, the State, which was vicariously liable for breach of two human rights committed by the first, second, third and fourth defendants: the right to freedom from arbitrary search and entry (Constitution, Section 44) and the right of protection against unjust deprivation of property (Constitution, Section 53). Liability was not established against those other defendants.
   

PLAINTIFF’S CLAIMS

6. The plaintiff claims damages in four categories: (1) loss of income, K116,928.00; (2) loss of property, K3,800.16; (3) breach of the right to freedom from arbitrary search and entry, K5,000.00; and (4) breach of the right of protection against unjust deprivation of property, K5,000.00, a total claim of K130,728.16.
   
7. Ms Maliaki, for the State, submitted that the claim for loss of property was the only one that had merit and that nothing should be awarded for the other claims, as despite establishing liability against the State, the plaintiff had failed to adduce any worthwhile evidence, and in particular, there was no corroboration of his claims.
   
1. LOSS OF INCOME
   

The plaintiff has given evidence that he was expecting to make a profit of K84.00 on each carton of beer he sold and that he was expecting to sell 29 cartons of beer each week (the number of cartons that were unlawfully confiscated by the Police). He multiplies those figures to arrive at his total profit per week for selling 29 cartons of beer: K84.00 x 29 = K2, 436.00. He then multiplies that weekly profit by 48, which is the number of weeks that passed from the date of the incident (23 June 2005) to the date of the decision of the National Court that upheld his appeal against the order of the District Court (26 May 2006): K2, 436.00 x 48 = K116, 928.00.

There are many problems with these figures, which have resulted in a grossly exaggerated claim. The K84.00 profit claim on each carton is not supported by the evidence. I find that the expected profit per carton was only K26.80. I find no basis for calculating that lost profit over a period of 48 weeks. The plaintiff was unlawfully deprived of income earning assets but he is expected to take reasonable steps to replace those assets (the confiscated beer) within a reasonable period, which I fix at four weeks. I award the following amount:

K26.80 (profit per carton) x 29 cartons = K777.20 lost profit per week x 4 weeks = K3, 108.80.

2. LOSS OF PROPERTY
   

This is another exaggerated claim. However, there is evidence that at the date of the incident the plaintiff was paying K57.20 for each carton of beer. I accept that figure and multiply it by the number of cartons unlawfully confiscated by the Police to arrive at the amount to be awarded for loss of property. Thus: K57.20 x 29 = K1, 658.80.

3. BREACH OF RIGHT TO FREEDOM FROM ARBITRARY SEARCH AND ENTRY
   

I have assessed damages for breaches of human rights by comparing the facts of this case with other recent cases involving assessment of damages in respect of human rights breaches committed by members of the Police Force: Lance Kolokol v The State (2009) N3571, Steven Kuefa v George Sunku (2012) N4855, Application for Enforcement of Human Rights by Jacob Okimbari (2013) N5420, Application for Enforcement of Human Rights by Batley Isaiah (2013) N5421, Gerard Pain v The State (2014) N5604 and Aquila Kunzie v NCD Police Mobile Squad (2014) N5701. This is a largely symbolic assessment as no damage was done by the Police to the plaintiff’s premises and the Police did not injure the plaintiff. However, they did breach a human right and the plaintiff deserves compensation for it. I award K3, 000.00.

4. BREACH OF RIGHT OF PROTECTION AGAINST UNJUST DEPRIVATION OF PROPERTY
   

This claim is also sound in principle. However it involves some overlap with the amounts awarded for lost profit and the value of the confiscated property. Again, a symbolic assessment is required. I award K2, 000.00.

SUMMARY OF DAMAGES AWARDED

Loss of income = K3, 108.80
Loss of property = K1, 658.80
Breach of right to freedom from arbitrary search and entry = K3, 000.00
Breach of right of protection against unjust deprivation of property = K2, 000.00

Total = K9, 767.60.

INTEREST

Interest will be awarded at the rate of 8 per cent per annum on the amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest is calculated from the date of service of the writ to the date of this judgment, a period of 8 years, by applying the formula D x I x N = A, where: D is the amount of damages; I is the interest rate per annum; N is the period in numbers of years; A is the amount of interest. Thus: K9, 767.60 x 0.08 x 8.00 = K6, 251.26.

COSTS

The general rule is that costs follow the event, i.e. the successful party has its costs paid for by the losing party on a party-to-party basis. In this case there is no clear winner. The plaintiff has on the one hand succeeded in obtaining an award of damages. On the other hand he succeeded in convincing the court that only 7.47% of his claim (K9, 767.60 out of K130, 728.16) had merit. The defendant succeeded in showing that the bulk of the claim was misconceived. In these circumstances the approach taken in Leeway East Enterprise Ltd v Daniel Danaben (2013) N4951 is the most appropriate: the parties will bear their own costs.

ORDER

(1) The fifth defendant is liable to pay to the plaintiff total damages of K9, 767.60 plus interest of K6, 251.26, being a total judgment sum of K16, 018.86.

(2) The parties will bear their own costs.

Judgment accordingly.

________________________________________________________
Thomas More Ilaisa Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyer for the Defendants