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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS (HR) NO 19 OF 2015
THOMPSON MUNVI FOR HIMSELF
AND 1,334 OTHERS NAMED IN THE SCHEDULE TO THE WRIT
Plaintiffs
V
SENIOR CONSTABLE ARNOLD ULKA TAKAI,
RAPID RESPONSE UNIT, MADANG
First Defendant
CHIEF INSPECTOR, SYLVESTAR KALAUT,
PROVINCIAL POLICE COMMANDER, MADANG
Second Defendant
THE COMMISSIONER OF POLICE
Third Defendant
MADANG PROVINCIAL LANDS OFFICER
Fourth Defendant
MADANG PROVINCIAL ADMINISTRATOR
Fifth Defendant
MADANG PROVINCIAL GOVERNMENT
Sixth Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant
RD FISHING PNG LIMITED
Eighth Defendant
Madang: Cannings J
2017: 1 March, 4 April, 1 May, 20 July, 1 August,
2018: 9 February
DAMAGES – breach of human rights – negligence – Police raid of rural settlement – property damage – assault.
The plaintiffs sued the defendants (various members of the Police Force and the State and the registered proprietor of a portion of land on which they had been living) in connection with an eviction exercise involving a Police raid of the land on which they were living and destruction of their homes, gardens and other properties and assault of some plaintiffs. The causes of action pleaded in their statement of claim were breaches of human rights and negligence. Default judgment was entered against the defendants. At the trial on assessment of damages, 106 plaintiffs gave evidence and sought damages in three categories: (a) general damages for pain and suffering, distress etc, K50,000.00 each, totalling K5,300,000.00; (b) property losses, various amounts, totalling K13,015,825.80; and (c) breach of human rights, K5,000.00 each, totalling K530,000.00; a grand total of K18,845,825.80. In response, the defendants adduced no evidence, and the registered proprietor did not appear at the trial. Those defendants that did appear (the Police and the State) argued that the question of liability should be revisited and the entire proceedings dismissed and the plaintiffs awarded nothing due to defects in the statement of claim; and in the alternative that the plaintiffs should be awarded no more than K5,000.00 each, a total of K530,000.00, due to a lack of evidence to support the claims.
(1) The State’s preliminary argument was rejected as it was made late, without notice and without evidence. Such arguments must be made by notice of motion, in a timely manner and supported by affidavit. In any event the statement of claim was clearly drafted and adequately pleaded causes of action in breach of human rights. The Court proceeded to assess damages on the basis of the evidence before it.
(2) It was appropriate to award damages to each plaintiff who had given evidence. Though there were some deficiencies in the plaintiffs’ evidence, there was no evidence brought by the State, and no submission, to contest the fundamental allegation that an eviction exercise, unsupported by the order of any Court, took place in the manner alleged, involving destruction of property, fear and distress and bodily assault on some plaintiffs.
(3) Damages were awarded to each plaintiff who gave evidence in the following amounts: (a) general damages for pain and suffering, distress etc, K10,000.00 each, totalling K1,060,000.00; (b) property losses, each claim was discounted by 90% to arrive at an appropriate assessment, totalling K1,301,582.58; and (c) breach of human rights, K5,000.00 each, totalling K530,000.00; a grand total of K2,891,582.58. In addition each plaintiff was awarded interest on the amount of damages awarded to them, at the rate of 2% per annum, for the period from the date of the filing of the writ to the date of judgment, a period of 2.5 years, totalling K144,579.13. The total judgment sum was damages of K2,891,582.58 + interest of K144,579.13 = K3,036,161.71.
Cases cited
The following cases are cited in the judgment:
Albert Baine v The State (1995) N1335
Alphonse Willie v Simon Kaupa (2016) N6553
Anuta Jobou v Alfred Kumasi and The State (2012) N4607
Eton Pakui v The State (2006) N2977
Francis Fuliva v Inspector Tony Wagambie Junior (2013) N5221
Joe Tipaiza v James Yali (2008) N3472
Jonathan Mangope Paraia v The State (1995) N1343
Justin Bau v Paul Karl (2010) N4123
Kolaip Palapi v Sergeant Poko (2001) N2274
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
London Association for the Protection of Trade v Greenlands Ltd [1916] 2 AC 15
Peter Wanis v Fred Sikiot and The State (1995) N1350
Philip Nare v The State (2017) SC1584
William Mel v Coleman Pakalia (2005) SC790
Yange Lagan v The State (1995) N1369
Yooken Paklin v The State (2001) N2212
TRIAL
This was a trial on assessment of damages following entry of default judgment.
Counsel
G Pipike, for the Plaintiffs
B B Wak, for the First, Second, Third & Seventh Defendants
9th February, 2018
1. CANNINGS J: This was a trial on assessment of damages following entry of default judgment against various members of the Police Force (the first, second and third defendants) and the State (seventh defendant) and RD Fishing Ltd (the eighth defendant). The proceedings against the fourth, fifth and sixth defendants have been discontinued.
2. The plaintiffs are former residents of Maiwara compound, commonly known as Portion 625, in the Vidar area of Madang District, Madang Province. They commenced proceedings against the State and other defendants in August 2015, claiming damages for alleged breaches of human rights committed by members of the Police Force in connection with an eviction exercise conducted in April-May 2014. They alleged that members of the Police Force, most of them members of the rapid response unit at Madang, raided the land on which they were living and destroyed their homes, gardens and other properties and in some cases threatened and assaulted the plaintiffs. It was claimed that the eviction exercise was requested and sponsored by RD Fishing Ltd, even though that company had ceased to be registered proprietor of the land, having surrendered its State Lease on 15 May 2009.
3. The defendants failed to properly defend the matter and on 4 March 2016 default judgment was entered against the following defendants:
4. Since default judgment was entered, the Supreme Court has in Philip Nare v The State (2017) SC1584 pointed to the futility of seeking or ordering judgment against the Commissioner of Police in cases such as the present, where the claim and the order should be made only against the State – unless the Commissioner is alleged or found to have been personally involved in the wrongful conduct giving rise to vicarious liability of the State. In this case there has never been any suggestion or finding of personal involvement by the Commissioner.
5. I have decided therefore on the own motion of the Court to set aside the default judgment against the Commissioner (the third defendant) and the two other Police defendants (the first and second defendants). I have also decided for the avoidance of doubt that the proceedings against the Commissioner and the other two Police defendants should be dismissed. These decisions, which do not materially prejudice the plaintiffs or the State, are reflected in the final order of the Court and ensure that there are no unresolved issues after entry of judgment on assessment against the State, and RD Tuna Ltd. This will make enforcement of the judgment a more realistic prospect and advance the interests of justice.
PLAINTIFFS’ CLAIMS AND DEFENDANTS’ RESPONSE
6. At this trial on assessment of damages, the plaintiffs sought damages in three categories:
(a) general damages for pain and suffering, distress etc, K50,000.00 each, totalling K5,300,000.00;
(b) “special damages”, which is better regarded as a claim for property losses, various amounts, totalling K13,015,825.80; and
(c) breach of human rights, K5,000.00 each, totalling K530,000.00;
a grand total of K18,845,825.80.
7. RD Fishing did not appear at the trial. Those defendants that did appear (the Police and the State) argued that the question of liability should be revisited and the entire proceedings dismissed and the plaintiffs awarded nothing due to defects in the statement of claim; and in the alternative that the plaintiffs should be awarded no more than K5,000.00 each, a total of K530,000.00, due to a lack of evidence to support the claims.
EVIDENCE
8. The plaintiffs’ case consisted of affidavits sworn by 106 plaintiffs and an affidavit by Gibson Kama, a registered valuer, annexing a separate valuation report he prepared in respect of property losses for each plaintiff who gave evidence. Each of the plaintiffs’ affidavits set out what the police had done and the property damage, assaults and threats that the deponent had incurred and/or witnessed. The defendants adduced no evidence.
PRELIMINARY ARGUMENT
9. I dismiss the State’s preliminary argument about revisiting the question of liability and dismissing the proceedings. The argument has been made late (well after entry of default judgment), without notice and without evidence. Such arguments must be made by notice of motion, in a timely manner (in this case, soon after entry of default judgment) and supported by affidavit. Alternatively the State should have appealed to the Supreme Court against the entry of default judgment.
10. As explained by the Supreme Court in William Mel v Coleman Pakalia (2005) SC790, the role of the judge assessing damages after entry of default judgment is:
11. I am satisfied that the facts and the causes of action are pleaded with sufficient clarity. Liability is therefore regarded as proven. The plaintiffs have established causes of action against the first, second, third, seventh and eighth defendants for negligence and breach of human rights, in particular, breach of the following:
GENERAL PRINCIPLES FOR ASSESSMENT OF DAMAGES
12. In assessing damages I have had regard to the following principles:
APPROACH TO ASSESSMENT OF DAMAGES
13. I am persuaded by the submissions of counsel for the plaintiffs, Mr Pipike, that even though only a small proportion of the 1,335 plaintiffs named on the writ have given evidence, the evidence that has been given is of sufficient quality to make an assessment of damages in respect of each of the 106 plaintiffs who has given evidence. I will assess damages in the three categories of damages claimed by the plaintiffs.
(a) GENERAL DAMAGES
14. Mr Pipike submitted that each plaintiff who has given evidence should be awarded K50,000.00 general damages. It is clear that it was a frighting and disturbing experience for all plaintiffs to see the Police enter the land on which they had been living for many years and threaten them with firearms as they set about burning their dwellings. However, there is insufficient evidence and precedent available on which an award of K50,000.00 would be warranted. I award each plaintiff who has given evidence the sum of K10,000.00.
(b) PROPERTY LOSSES
15. I am persuaded by the submissions of counsel for the State, Mr Wak, that a lack of corroboration pervades the plaintiffs’ evidence as to property losses, calling into question its veracity. For example, the lead plaintiff Thompson Munvi claims property losses of K508,100.00 plus a house said to be destroyed worth K111,500.00, a total of K619,600.00. He has given evidence in support of these amounts, including a valuation report by Mr Kama, which, frankly I find difficult to accept as it appears to be based on very generous assumptions as to what property the plaintiff had on the land. There is no independent verification of the extent of the damage. I do not find it credible that property of that value would have been on a small rural block. Most plaintiffs are claiming property losses exceeding K100,000.00, which seems incongruous with the standard of living reasonably expected to be applicable to a group of settlers on a rural portion of land.
16. The plaintiffs’ claims are in my view exaggerated. It is nonetheless appropriate to arrive at an assessment of damages. Though there are deficiencies in the plaintiffs’ evidence, there was no evidence brought by the State, and no submission, to contest the fundamental allegation that an unlawful eviction exercise, unsupported by the order of any Court, took place in the manner alleged, involving mass destruction of property.
17. I have had regard to the approach I have taken in a number of other cases of multiple plaintiffs, most of which are “police raid cases”. In some cases I have discounted each claim by a certain percentage to arrive at reasonable and realistic sums. For example:
18. In other cases I have awarded the same global sum to each plaintiff who has given evidence. For example:
19. I have decided to take the first approach outlined above. I will discount each claim by 90% to take account of the deficiencies in the evidence. The result of this process of assessment is shown in table 1. Column 1 is the number ascribed to the plaintiff according to the numbering of his or her affidavit. Column 2 is the plaintiff’s name. Column 3 is the amount claimed by the plaintiff for property, apart from house, losses. Column 4 is a claim for the value of the plaintiff’s destroyed house. Column 5 is the total of columns 3 and 4: the plaintiff’s total claim for property losses. Column 6 is the figure in column 5 multiplied by 10% (representing the discounting of the total claim for property losses by 90%). It is the figure in column 6 that is the amount awarded to the plaintiff for property losses (category (b) of the claims).
TABLE 1: AWARD OF DAMAGES
FOR PROPERTY LOSSES INCLUDING HOUSE LOSSES
| No | Name | Claim for property losses (K) | Claim for loss of house (K) | Total claim for property losses (K) | Amount awarded (K) |
| | Janet Amos | 94,848.50 | 29,000.00 | 123,848.50 | 12,384.85 |
| | Prisla Gambura | 99,988.00 | 28,000.00 | 127,988.00 | 12,798.80 |
| | Naiwa Lalong | 45,070.00 | 24,500.00 | 69,570.00 | 6,957.00 |
| | James Kaut | 25,685.70 | 25,500.00 | 51,185.70 | 5,118.57 |
| | Albert Koli | 243,450.00 | 124,500.00 | 367,950.00 | 36,795.00 |
| | Thompson Munvi | 508,100.00 | 111,500.00 | 619,600.00 | 61,960.00 |
| | Florin Nanawan | 307,834.00 | 111,000.00 | 418,834.00 | 41,883.40 |
| | Gambura Maima | 102,482.00 | 27,000.00 | 129,482.00 | 12,948.20 |
| | Bernard Siloi | 85,200.00 | 57,000.00 | 142,200.00 | 14,220.00 |
| | Febronia Siloi Taddie | 91,608.00 | 27,500.00 | 119,108.00 | 11,910.80 |
| | Hansen Makis | 286,711.00 | 32,500.00 | 319,211.00 | 31,921.10 |
| | Bonny Ikon | 45,470.00 | 25,500.00 | 70,970.00 | 7,097.00 |
| | Jimmy Dimat | 16,273.00 | 25,500.00 | 41,773.00 | 4,177.30 |
| | Joe Nuknai | 113,859.00 | 25,500.00 | 139,359.00 | 13,935.90 |
| | Ishmael Kabe | 16,441.40 | 25,500.00 | 41,941.40 | 4,194.14 |
| | Tonny Kaut | 58,770.00 | 29,000.00 | 87,770.00 | 8,777.00 |
| | Clement Beiyo | 15,587.00 | 25,500.00 | 41,087.00 | 4,108.70 |
| | John Jikera | 77,962.00 | 59,000.00 | 136,962.00 | 13,696.20 |
| | Jacob Apito | 63,400.00 | 25,500.00 | 88,900.00 | 8,890.00 |
| | Belly Jones | 79,848.50 | 25,500.00 | 105,348.50 | 10,534.85 |
| | Michael Mauk | 83,854.00 | 20,000.00 | 103,854.00 | 10,385.40 |
| | Joseph Kubali | 12,395.00 | 10,000.00 | 22,395.00 | 2,239.50 |
| | Johnny Boi Holonga | 110,169.00 | 61,000.00 | 171,169.00 | 17,116.90 |
| | Patrick Beiyo | 61,645.20 | 29,500.00 | 91,145.20 | 9,114.52 |
| | John Asaruka | 128,550.00 | 25,500.00 | 154,050.00 | 15,405.00 |
| | Daniel Ambri | 23,043.00 | 37,500.00 | 60,543.00 | 6,054.30 |
| | Smith Beiyo | 64,335.00 | 29,000.00 | 93,335.00 | 9,333.50 |
| | Junior Tamen | 60,330.00 | 40,500.00 | 100,830.00 | 10,083.00 |
| | Nick Dadu | 87,550.00 | 29,500.00 | 117,050.00 | 11,705.00 |
| | Nanigu Peter | 43,050.00 | 29,000.00 | 72,050.00 | 7,205.00 |
| | Melchior Naah | 47,673.00 | 17,000.00 | 64,673.00 | 6,467.30 |
| | Rodney Kaima | 89,840.00 | 54,000.00 | 143,840.00 | 14,384.00 |
| | Mick Awun | 19,820.00 | 24,500.00 | 44,320.00 | 4,432.00 |
| | Rosa Luku | 41,930.00 | 29,000.00 | 70,930.00 | 7,093.00 |
| | Thomas Bidigut | 20,995.00 | 24,000.00 | 44,995.00 | 4,499.50 |
| | Richard Manula | 28,751.14 | 29,000.00 | 57,751.14 | 5,775.11 |
| | Robert Nanut | 54,626.10 | 29,000.00 | 83,626.10 | 8,362.61 |
| | Thresia Auk | 54,970.00 | 29,000.00 | 83,970.00 | 8,397.00 |
| | Henrick Mebo | 55,300.00 | 25,500.00 | 80,800.00 | 8,080.00 |
| | Sau Bonga | 37,665.00 | 29,000.00 | 66,665.00 | 6,666.50 |
| | Rose Hoe | 86,001.00 | 50,000.00 | 136,001.00 | 13,600.10 |
| | Stanley Dulai | 26,424.00 | 24,500.00 | 50,924.00 | 5,092.40 |
| | Benjamin Upinguru | 93,340.00 | 25,500.00 | 118,840.00 | 11,884.00 |
| | Leo Niangu | 44,566.00 | 24,500.00 | 69,066.00 | 6,906.60 |
| | Rex Marky | 54,626.10 | 29,000.00 | 83,626.10 | 8,362.61 |
| | John Siune | 77,962.00 | 45,000.00 | 122,962.00 | 12,296.20 |
| | Franky Munongsi | 94,848.00 | 32,000.00 | 126,848.00 | 12,684.80 |
| | Salome Salameng | 94,255.00 | 42,000.00 | 136,255.00 | 13,625.50 |
| | Peter Samigum | 90,705.00 | 54,000.00 | 144,705.00 | 14,470.50 |
| | Patrick Yalkuna | 86,395.00 | 54,000.00 | 140,395.00 | 14,039.50 |
| | Roger Bomai | 49,495.00 | 29,000.00 | 78,495.00 | 7,849.50 |
| | Samson Charlie | 22,895.00 | 24,500.00 | 47,395.00 | 4,739.50 |
| | Pamela Thomas Kagl | 93,800.00 | 29,500.00 | 123,300.00 | 12,330.00 |
| | Steven Nakra | 67,400.00 | 29,000.00 | 96,400.00 | 9,640.00 |
| | Michael Bidam | 94,848.50 | 29,000.00 | 123,848.50 | 12,384.85 |
| | Peter Lowa | 169,098.66 | 37,000.00 | 206,098.66 | 20,609.87 |
| | Isaac Ibun | 57,550.00 | 25,500.00 | 83,050.00 | 8,305.00 |
| | Martin Ibung | 91,608.00 | 19,000.00 | 110,608.00 | 11,060.80 |
| | Joseph Souket | 77,962.00 | 52,000.00 | 129,962.00 | 12,996.20 |
| | Billy Supin | 90,650.00 | 25,500.00 | 116,150.00 | 11,615.00 |
| | Moses Pafu | 33,776.00 | 26,000.00 | 59,776.00 | 5,977.60 |
| | Victor Kaitok | 61,255.00 | 29,000.00 | 90,255.00 | 9,025.50 |
| | Robert Paliangu | 68,278.00 | 29,000.00 | 97,278.00 | 9,727.80 |
| | Bernard Mainduo | 86,800.00 | 25,500.00 | 112,300.00 | 11,230.00 |
| | Thomas Morok | 280,658.90 | 100,000.00 | 380,658.90 | 38,065.89 |
| | Oscar Pilleng | 94,060.00 | 29,500.00 | 123,560.00 | 12,356.00 |
| | Alphonse Kanum | 51,500.00 | 24,500.00 | 76,000.00 | 7,600.00 |
| | John Mamine | 87,550.00 | 26,500.00 | 114,050.00 | 11,405.00 |
| | Peter Kumane | 83,900.00 | 20,000.00 | 103,900.00 | 10,390.00 |
| | Tei Julie | 305,980.00 | 84,000.00 | 389,980.00 | 38,998.00 |
| | Plistine Maris | 33,190.00 | 24,500.00 | 57,690.00 | 5,769.00 |
| | George Pius | 95,938.00 | 25,500.00 | 121,438.00 | 12,143.80 |
| | Claira Anzar | 78,800.00 | 25,500.00 | 104,300.00 | 10,430.00 |
| | Paul Singer | 144,440.00 | 54,000.00 | 198,440.00 | 19,844.00 |
| | Pius Wakor | 44,566.00 | 29,000.00 | 73,566.00 | 7,356.60 |
| | Margaret Hoe | 54,940.00 | 24,500.00 | 79,440.00 | 7,944.00 |
| | Casius Morok | 99,150.00 | 25,500.00 | 124,650.00 | 12,465.00 |
| | Anna Moi | 59,460.00 | 25,500.00 | 84,960.00 | 8,496.00 |
| | Jacob Nomeri | 45,470.00 | 25,500.00 | 70,970.00 | 7,097.00 |
| | Tony Dick | 61,255.00 | 29,000.00 | 90,255.00 | 9,025.50 |
| | Kaigo Neknek | 119,870.00 | 58,000.00 | 177,870.00 | 17,787.00 |
| | John Tumun | 121,120.00 | 65,000.00 | 186,120.00 | 18,612.00 |
| | Elizah Otto | 55,300.00 | 25,500.00 | 80,800.00 | 8,080.00 |
| | Ruben John | 185,284.70 | 54,000.00 | 239,284.70 | 23,928.47 |
| | Andrew Palma | 42,000.00 | 25,500.00 | 67,500.00 | 6,750.00 |
| | Paul Karua | 48,550.00 | 24,500.00 | 73,050.00 | 7,305.00 |
| | Diana Kepas | 57,600.00 | 25,500.00 | 83,100.00 | 8,310.00 |
| | Dickson Mulu | 111,960.00 | 101,000.00 | 212,960.00 | 21,296.00 |
| | Joyce Kami | 77,962.00 | 72,000.00 | 149,962.00 | 14,996.20 |
| | Roka Gaima | 32,790.00 | 29,000.00 | 61,790.00 | 6,179.00 |
| | Thomas Kagl | 127,440.00 | 80,500.00 | 207,940.00 | 20,794.00 |
| | Isaac Oisima | 87,550.00 | 25,500.00 | 113,050.00 | 11,305.00 |
| | Abigle Bigea | 58,300.00 | 22,000.00 | 80,300.00 | 8,030.00 |
| | Casper Beiyo | 94,848.50 | 25,500.00 | 120,348.50 | 12,034.85 |
| | Andrew Palinga | 51,640.00 | 29,500.00 | 81,140.00 | 8,114.00 |
| | Marcelus Morok | 99,355.00 | 26,500.00 | 125,855.00 | 12,585.50 |
| | Rebecca Kaipo | 99,988.00 | 29,000.00 | 128,988.00 | 12,898.80 |
| | Solanus Masai | 75,068.00 | 20,000.00 | 95,068.00 | 9,506.80 |
| | Joachim Kais | 87,550.00 | 25,500.00 | 113,050.00 | 11,305.00 |
| | John Kari | 62,390.00 | 25,500.00 | 87,890.00 | 8,789.00 |
| | Maria Igum | 18,656.00 | 20,000.00 | 38,656.00 | 3,865.60 |
| | Lina Sazaka | 87,550.00 | 29,500.00 | 117,050.00 | 11,705.00 |
| | Veronica Siune | 138,630.00 | 54,000.00 | 192,630.00 | 19,263.00 |
| | Joe Munvi | 216,100.50 | 33,000.00 | 249,100.50 | 24,910.05 |
| | Ruben Baita | 25,347.40 | 24,500.00 | 49,847.40 | 4,984.74 |
| | Rebecca Michael | 84,000.00 | 29,000.00 | 113,000.00 | 11,300.00 |
| Total | 9,207,325.80 | 3,808,500.00 | 13,015,825.80 | 1,301,582.58 | |
(c) COMPENSATION FOR BREACH OF HUMAN RIGHTS
20. It is appropriate to award a separate sum as compensation for breaches of human rights. I award the amount claimed, K5,000.00 for each plaintiff.
21. The total amount of compensation for breach of human rights is 106 plaintiffs x K5,000.00 per plaintiff = K530,000.00.
SUMMARY
22. Each plaintiff who has given evidence is awarded the total of the following sums:
(a) General damages: K10,000.00;
(b) Property losses: the amount shown for that plaintiff in table 1;
(c) Compensation for breach of human rights: K5,000.00.
23. The total award of damages to each plaintiff who has given evidence is shown in table 2.
TABLE 2: TOTAL AWARD OF DAMAGES
| No | Name | (a) General damages | (b) Property losses | (c) Compensation breach of human rights | Amount awarded (K) |
| | Janet Amos | 10,000.00 | 12,384.85 | 5,000.00 | 27,384.85 |
| | Prisla Gambura | 10,000.00 | 12,798.80 | 5,000.00 | 27,798.80 |
| | Naiwa Lalong | 10,000.00 | 6,957.00 | 5,000.00 | 21,957.00 |
| | James Kaut | 10,000.00 | 5,118.57 | 5,000.00 | 20,118.57 |
| | Albert Koli | 10,000.00 | 36,795.00 | 5,000.00 | 51,795.00 |
| | Thompson Munvi | 10,000.00 | 61,960.00 | 5,000.00 | 76,960.00 |
| | Florin Nanawan | 10,000.00 | 41,883.40 | 5,000.00 | 56,883.40 |
| | Gambura Maima | 10,000.00 | 12,948.20 | 5,000.00 | 27,948.20 |
| | Bernard Siloi | 10,000.00 | 14,220.00 | 5,000.00 | 29,220.00 |
| | Febronia Siloi Taddie | 10,000.00 | 11,910.80 | 5,000.00 | 26,910.80 |
| | Hansen Makis | 10,000.00 | 31,921.10 | 5,000.00 | 46,921.10 |
| | Bonny Ikon | 10,000.00 | 7,097.00 | 5,000.00 | 22,097.00 |
| | Jimmy Dimat | 10,000.00 | 4,177.30 | 5,000.00 | 19,177.30 |
| | Joe Nuknai | 10,000.00 | 13,935.90 | 5,000.00 | 28,935.90 |
| | Ishmael Kabe | 10,000.00 | 4,194.14 | 5,000.00 | 19,194.14 |
| | Tonny Kaut | 10,000.00 | 8,777.00 | 5,000.00 | 23,777.00 |
| | Clement Beiyo | 10,000.00 | 4,108.70 | 5,000.00 | 19,108.70 |
| | John Jikera | 10,000.00 | 13,696.20 | 5,000.00 | 28,696.20 |
| | Jacob Apito | 10,000.00 | 8,890.00 | 5,000.00 | 23,890.00 |
| | Belly Jones | 10,000.00 | 10,534.85 | 5,000.00 | 25,534.85 |
| | Michael Mauk | 10,000.00 | 10,385.40 | 5,000.00 | 25,385.40 |
| | Joseph Kubali | 10,000.00 | 2,239.50 | 5,000.00 | 17,239.50 |
| | Johnny Boi Holonga | 10,000.00 | 17,116.90 | 5,000.00 | 32,116.90 |
| | Patrick Beiyo | 10,000.00 | 9,114.52 | 5,000.00 | 24,114.52 |
| | John Asaruka | 10,000.00 | 15,405.00 | 5,000.00 | 30,405.00 |
| | Daniel Ambri | 10,000.00 | 6,054.30 | 5,000.00 | 21,054.30 |
| | Smith Beiyo | 10,000.00 | 9,333.50 | 5,000.00 | 24,333.50 |
| | Junior Tamen | 10,000.00 | 10,083.00 | 5,000.00 | 25,083.00 |
| | Nick Dadu | 10,000.00 | 11,705.00 | 5,000.00 | 26,705.00 |
| | Nanigu Peter | 10,000.00 | 7,205.00 | 5,000.00 | 22,205.00 |
| | Melchior Naah | 10,000.00 | 6,467.30 | 5,000.00 | 21,467.30 |
| | Rodney Kaima | 10,000.00 | 14,384.00 | 5,000.00 | 29,384.00 |
| | Mick Awun | 10,000.00 | 4,432.00 | 5,000.00 | 19,432.00 |
| | Rosa Luku | 10,000.00 | 7,093.00 | 5,000.00 | 22,093.00 |
| | Thomas Bidigut | 10,000.00 | 4,499.50 | 5,000.00 | 19,499.50 |
| | Richard Manula | 10,000.00 | 5,775.11 | 5,000.00 | 20,775.11 |
| | Robert Nanut | 10,000.00 | 8,362.61 | 5,000.00 | 23,362.61 |
| | Thresia Auk | 10,000.00 | 8,397.00 | 5,000.00 | 23,397.00 |
| | Henrick Mebo | 10,000.00 | 8,080.00 | 5,000.00 | 23,080.00 |
| | Sau Bonga | 10,000.00 | 6,666.50 | 5,000.00 | 21,666.50 |
| | Rose Hoe | 10,000.00 | 13,600.10 | 5,000.00 | 28,600.10 |
| | Stanley Dulai | 10,000.00 | 5,092.40 | 5,000.00 | 20,092.40 |
| | Benjamin Upinguri | 10,000.00 | 11,884.00 | 5,000.00 | 26,884.00 |
| | Leo Niangu | 10,000.00 | 6,906.60 | 5,000.00 | 21,906.60 |
| | Rex Marky | 10,000.00 | 8,362.61 | 5,000.00 | 23,362.61 |
| | John Siune | 10,000.00 | 12,296.20 | 5,000.00 | 27,296.20 |
| | Franky Munongsi | 10,000.00 | 12,684.80 | 5,000.00 | 27,684.80 |
| | Salome Salameng | 10,000.00 | 13,625.50 | 5,000.00 | 28,625.50 |
| | Peter Samigum | 10,000.00 | 14,470.50 | 5,000.00 | 29,470.50 |
| | Patrick Yalkuna | 10,000.00 | 14,039.50 | 5,000.00 | 29,039.50 |
| | Roger Bomai | 10,000.00 | 7,849.50 | 5,000.00 | 22,849.50 |
| | Samson Charlie | 10,000.00 | 4,739.50 | 5,000.00 | 19,739.50 |
| | Pamela Thomas Kagl | 10,000.00 | 12,330.00 | 5,000.00 | 27,330.00 |
| | Steven Nakra | 10,000.00 | 9,640.00 | 5,000.00 | 24,640.00 |
| | Michael Bidam | 10,000.00 | 12,384.85 | 5,000.00 | 27,384.85 |
| | Peter Lowa | 10,000.00 | 20,609.87 | 5,000.00 | 35,609.87 |
| | Isaac Ibun | 10,000.00 | 8,305.00 | 5,000.00 | 23,305.00 |
| | Martin Ibung | 10,000.00 | 11,060.80 | 5,000.00 | 26,060.80 |
| | Joseph Souket | 10,000.00 | 12,996.20 | 5,000.00 | 27,996.20 |
| | Billy Supin | 10,000.00 | 11,615.00 | 5,000.00 | 26,615.00 |
| | Moses Pafu | 10,000.00 | 5,977.60 | 5,000.00 | 20,977.60 |
| | Victor Kaitok | 10,000.00 | 9,025.50 | 5,000.00 | 24,025.50 |
| | Robert Paliangu | 10,000.00 | 9,727.80 | 5,000.00 | 24,727.80 |
| | Bernard Mainduo | 10,000.00 | 11,230.00 | 5,000.00 | 26,230.00 |
| | Thomas Morok | 10,000.00 | 38,065.89 | 5,000.00 | 53,065.89 |
| | Oscar Pilleng | 10,000.00 | 12,356.00 | 5,000.00 | 27,356.00 |
| | Alphonse Kanum | 10,000.00 | 7,600.00 | 5,000.00 | 22,600.00 |
| | John Mamine | 10,000.00 | 11,405.00 | 5,000.00 | 26,405.00 |
| | Peter Kumane | 10,000.00 | 10,390.00 | 5,000.00 | 25,390.00 |
| | Tei Julie | 10,000.00 | 38,998.00 | 5,000.00 | 53,998.00 |
| | Plistine Maris | 10,000.00 | 5,769.00 | 5,000.00 | 20,769.00 |
| | George Pius | 10,000.00 | 12,143.80 | 5,000.00 | 27,143.80 |
| | Claira Anzar | 10,000.00 | 10,430.00 | 5,000.00 | 25,430.00 |
| | Paul Singer | 10,000.00 | 19,844.00 | 5,000.00 | 34,844.00 |
| | Pius Wakor | 10,000.00 | 7,356.60 | 5,000.00 | 22,356.60 |
| | Margaret Hoe | 10,000.00 | 7,944.00 | 5,000.00 | 22,944.00 |
| | Casius Morok | 10,000.00 | 12,465.00 | 5,000.00 | 27,465.00 |
| | Anna Moi | 10,000.00 | 8,496.00 | 5,000.00 | 23,496.00 |
| | Jacob Nomeri | 10,000.00 | 7,097.00 | 5,000.00 | 22,097.00 |
| | Tonny Dick | 10,000.00 | 9,025.50 | 5,000.00 | 24,025.50 |
| | Kaigo Neknek | 10,000.00 | 17,787.00 | 5,000.00 | 32,787.00 |
| | John Tumun | 10,000.00 | 18,612.00 | 5,000.00 | 33,612.00 |
| | Elizah Otto | 10,000.00 | 8,080.00 | 5,000.00 | 23,080.00 |
| | Reuben John | 10,000.00 | 23,928.47 | 5,000.00 | 38,928.47 |
| | Andrew Palma | 10,000.00 | 6,750.00 | 5,000.00 | 21,750.00 |
| | Paul Karua | 10,000.00 | 7,305.00 | 5,000.00 | 22,305.00 |
| | Diana Kepas | 10,000.00 | 8,310.00 | 5,000.00 | 23,310.00 |
| | Dickson Mulu | 10,000.00 | 21,296.00 | 5,000.00 | 36,296.00 |
| | Joyce Kami | 10,000.00 | 14,996.20 | 5,000.00 | 29,996.20 |
| | Roka Gaima | 10,000.00 | 6,179.00 | 5,000.00 | 21,179.00 |
| | Thomas Kagl | 10,000.00 | 20,794.00 | 5,000.00 | 35,794.00 |
| | Isaac Oisima | 10,000.00 | 11,305.00 | 5,000.00 | 26,305.00 |
| | Abigail Bigea | 10,000.00 | 8,030.00 | 5,000.00 | 23,030.00 |
| | Casper Beiyo | 10,000.00 | 12,034.85 | 5,000.00 | 27,034.85 |
| | Andrew Palinga | 10,000.00 | 8,114.00 | 5,000.00 | 23,114.00 |
| | Marcelus Morok | 10,000.00 | 12,585.50 | 5,000.00 | 27,585.50 |
| | Rebecca Kaipo | 10,000.00 | 12,898.80 | 5,000.00 | 27,898.80 |
| | Solanus Masai | 10,000.00 | 9,506.80 | 5,000.00 | 24,506.80 |
| | Joachim Kais | 10,000.00 | 11,305.00 | 5,000.00 | 26,305.00 |
| | John Kari | 10,000.00 | 8,789.00 | 5,000.00 | 23,789.00 |
| | Maria Igum | 10,000.00 | 3,865.60 | 5,000.00 | 18,865.60 |
| | Lina Sazaka | 10,000.00 | 11,705.00 | 5,000.00 | 26,705.00 |
| | Veronica Siune | 10,000.00 | 19,263.00 | 5,000.00 | 34,263.00 |
| | Joe Munvi | 10,000.00 | 24,910.05 | 5,000.00 | 39,910.05 |
| | Reuben Baita | 10,000.00 | 4,984.74 | 5,000.00 | 19,984.74 |
| | Rebecca Michael | 10,000.00 | 11,300.00 | 5,000.00 | 26,300.00 |
| Total | 1,060,000.00 | 1,301,582.58 | 530,000.00 | 2,891,582.58 | |
INTEREST
24. Mr Pipike submitted that interest should be awarded on the total amount of damages awarded to each plaintiff under the Judicial Proceedings (Interest on Debts and Damages) Act 2015. He seeks interest at the rate of 2% per annum against the State (in line with Section 4(3) of that Act) and 8% per annum against RD Fishing Ltd. I will not distinguish between the different defendants in that way. The rate of interest is discretionary. I think it would make enforcement of the judgment debt too cumbersome to award interest at different rates.
25. As for the period in respect of which interest is calculated, I fix the start date as the date of the filing of the writ, 5 August 2015. The end date will be the date of delivery of this judgment. The relevant period is 2.5 years. Interest will be awarded 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 years, A is the amount of interest. Interest has thus been calculated by multiplying each award of damages by a factor of 0.05 (0.02 x 2.5) and is shown in the Schedule below.
APPORTIONMENT
26. Mr Pipike submitted that the Court should apportion responsibility for satisfying the judgment debt on a 50:50 basis as between the State and RD Fishing Ltd. I am not sure that that would benefit the plaintiffs. I think a better and fairer approach is to simply order that the seventh and eighth defendants are liable in damages.
27. If a judgment is signed against two or more defendants generally for the same cause of action without apportioning liability amongst them the presumption arises that all defendants are jointly and severally liable for damages and for satisfaction of the judgment debt after assessment of damages (London Association for the Protection of Trade v Greenlands Ltd [1916] 2 AC 15). The plaintiff is awarded the entire damages against each defendant. The plaintiff can pursue satisfaction of the entire judgment against one or more of the defendants provided not more than the total judgment is recovered.
COSTS
28. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. I have given close consideration to awarding the plaintiffs only part of their costs as I have found their claims to be exaggerated. However the State made submissions that were also largely rejected. As for RD Fishing Ltd, it failed to appear and assist the Court. I have decided that costs will follow the event.
ORDER
SCHEDULE
| No | Name | Total damages (K) | Interest (K) X 0.05 | Total award of damages + interest (K) |
| | Janet Amos | 27,384.85 | 1,369.24 | 28,754.09 |
| | Prisla Gambura | 27,798.80 | 1,389.94 | 29,188.74 |
| | Naiwa Lalong | 21,957.00 | 1,097.85 | 23,054.85 |
| | James Kaut | 20,118.57 | 1,005.93 | 21,124.50 |
| | Albert Koli | 51,795.00 | 2,589.75 | 54,384.75 |
| | Thompson Munvi | 76,960.00 | 3,848.00 | 80,808.00 |
| | Florin Nanawan | 56,883.40 | 2,844.17 | 59,727.57 |
| | Gambura Maima | 27,948.20 | 1,397.41 | 29,345.61 |
| | Bernard Siloi | 29,220.00 | 1,461.00 | 30,681.00 |
| | Febronia Siloi Taddie | 26,910.80 | 1,345.54 | 28,256.34 |
| | Hansen Makis | 46,921.10 | 2,346.06 | 49,267.16 |
| | Bonny Ikon | 22,097.00 | 1,104.85 | 23,201.85 |
| | Jimmy Dimat | 19,177.30 | 958.87 | 20,136.17 |
| | Joe Nuknai | 28,935.90 | 1,446.80 | 30,382.70 |
| | Ishmael Kabe | 19,194.14 | 959.71 | 20,153.85 |
| | Tonny Kaut | 23,777.00 | 1,188.85 | 24,965.85 |
| | Clement Beiyo | 19,108.70 | 955.44 | 20,064.14 |
| | John Jikera | 28,696.20 | 1,434.81 | 30,131.01 |
| | Jacob Apito | 23,890.00 | 1,194.50 | 25,084.50 |
| | Belly Jones | 25,534.85 | 1,276.74 | 26,811.59 |
| | Michael Mauk | 25,385.40 | 1,269.27 | 26,654.67 |
| | Joseph Kubali | 17,239.50 | 861.98 | 18,101.48 |
| | Johnny Boi Holonga | 32,116.90 | 1,605.85 | 33,722.75 |
| | Patrick Beiyo | 24,114.52 | 1,205.73 | 25,320.25 |
| | John Asaruka | 30,405.00 | 1,520.25 | 31,925.25 |
| | Daniel Ambri | 21,054.30 | 1,052.72 | 22,107.02 |
| | Smith Beiyo | 24,333.50 | 1,216.68 | 25,550.18 |
| | Junior Tamen | 25,083.00 | 1,254.15 | 26,337.15 |
| | Nick Dadu | 26,705.00 | 1,335.25 | 28,040.25 |
| | Nanigu Peter | 22,205.00 | 1,110.25 | 23,315.25 |
| | Melchior Naah | 21,467.30 | 1,073.37 | 22,540.67 |
| | Rodney Kaima | 29,384.00 | 1,469.20 | 30,853.20 |
| | Mick Awun | 19,432.00 | 971.60 | 20,403.60 |
| | Rosa Luku | 22,093.00 | 1,104.65 | 23,197.65 |
| | Thomas Bidigut | 19,499.50 | 974.98 | 20,474.48 |
| | Richard Manula | 20,775.11 | 1,038.76 | 21,813.87 |
| | Robert Nanut | 23,362.61 | 1,168.13 | 24,530.74 |
| | Thresia Auk | 23,397.00 | 1,169.85 | 24,566.85 |
| | Henrick Mebo | 23,080.00 | 1,154.00 | 24,234.00 |
| | Sau Bonga | 21,666.50 | 1,083.33 | 22,749.83 |
| | Rose Hoe | 28,600.10 | 1,430.01 | 30,030.11 |
| | Stanley Dulai | 20,092.40 | 1,004.62 | 21,097.02 |
| | Benjamin Upinguri | 26,884.00 | 1,344.20 | 28,228.20 |
| | Leo Niangu | 21,906.60 | 1,095.33 | 23,001.93 |
| | Rex Marky | 23,362.61 | 1,168.13 | 24,530.74 |
| | John Siune | 27,296.20 | 1,364.81 | 28,661.01 |
| | Franky Munongsi | 27,684.80 | 1,384.24 | 29,069.04 |
| | Salome Salameng | 28,625.50 | 1,431.28 | 30,056.78 |
| | Peter Samigum | 29,470.50 | 1,473.53 | 30,944.03 |
| | Patrick Yalkuna | 29,039.50 | 1,451.98 | 30,491.48 |
| | Roger Bomai | 22,849.50 | 1,142.48 | 23,991.98 |
| | Samson Charlie | 19,739.50 | 986.98 | 20,726.48 |
| | Pamela Thomas Kagl | 27,330.00 | 1,366.50 | 28,696.50 |
| | Steven Nakra | 24,640.00 | 1,232.00 | 25,872.00 |
| | Michael Bidam | 27,384.85 | 1,369.24 | 28,754.09 |
| | Peter Lowa | 35,609.87 | 1,780.49 | 37,390.36 |
| | Isaac Ibun | 23,305.00 | 1,165.25 | 24,470.25 |
| | Martin Ibung | 26,060.80 | 1,303.04 | 27,363.84 |
| | Joseph Souket | 27,996.20 | 1,399.81 | 29,396.01 |
| | Billy Supin | 26,615.00 | 1,330.75 | 27,945.75 |
| | Moses Pafu | 20,977.60 | 1,048.88 | 22,026.48 |
| | Victor Kaitok | 24,025.50 | 1,201.28 | 25,226.78 |
| | Robert Paliangu | 24,727.80 | 1,236.39 | 25,964.19 |
| | Bernard Mainduo | 26,230.00 | 1,311.50 | 27,541.50 |
| | Thomas Morok | 53,065.89 | 2,653.29 | 55,719.18 |
| | Oscar Pilleng | 27,356.00 | 1,367.80 | 28,723.80 |
| | Alphonse Kanum | 22,600.00 | 1,130.00 | 23,730.00 |
| | John Mamine | 26,405.00 | 1,320.25 | 27,725.25 |
| | Peter Kumane | 25,390.00 | 1,269.50 | 26,659.50 |
| | Tei Julie | 53,998.00 | 2,699.90 | 56,697.90 |
| | Plistine Maris | 20,769.00 | 1,038.45 | 21,807.45 |
| | George Pius | 27,143.80 | 1,357.19 | 28,500.99 |
| | Claira Anzar | 25,430.00 | 1,271.50 | 26,701.50 |
| | Paul Singer | 34,844.00 | 1,742.20 | 36,586.20 |
| | Pius Wakor | 22,356.60 | 1,117.83 | 23,474.43 |
| | Margaret Hoe | 22,944.00 | 1,147.20 | 24,091.20 |
| | Casius Morok | 27,465.00 | 1,373.25 | 28,838.25 |
| | Anna Moi | 23,496.00 | 1,174.80 | 24,670.80 |
| | Jacob Nomeri | 22,097.00 | 1,104.85 | 23,201.85 |
| | Tonny Dick | 24,025.50 | 1,201.28 | 25,226.78 |
| | Kaigo Neknek | 32,787.00 | 1,639.35 | 34,426.35 |
| | John Tumun | 33,612.00 | 1,680.60 | 35,292.60 |
| | Elizah Otto | 23,080.00 | 1,154.00 | 24,234.00 |
| | Reuben John | 38,928.47 | 1,946.42 | 40,874.89 |
| | Andrew Palma | 21,750.00 | 1,087.50 | 22,837.50 |
| | Paul Karua | 22,305.00 | 1,115.25 | 23,420.25 |
| | Diana Kepas | 23,310.00 | 1,165.50 | 24,475.50 |
| | Dickson Mulu | 36,296.00 | 1,814.80 | 38,110.80 |
| | Joyce Kami | 29,996.20 | 1,499.81 | 31,496.01 |
| | Roka Gaima | 21,179.00 | 1,058.95 | 22,237.95 |
| | Thomas Kagl | 35,794.00 | 1,789.70 | 37,583.70 |
| | Isaac Oisima | 26,305.00 | 1,315.25 | 27,620.25 |
| | Abigail Bigea | 23,030.00 | 1,151.50 | 24,181.50 |
| | Casper Beiyo | 27,034.85 | 1,351.74 | 28,386.59 |
| | Andrew Palinga | 23,114.00 | 1,155.70 | 24,269.70 |
| | Marcelus Morok | 27,585.50 | 1,379.28 | 28,964.78 |
| | Rebecca Kaipo | 27,898.80 | 1,394.94 | 29,293.74 |
| | Solanus Masai | 24,506.80 | 1,225.34 | 25,732.14 |
| | Joachim Kais | 26,305.00 | 1,315.25 | 27,620.25 |
| | John Kari | 23,789.00 | 1,189.45 | 24,978.45 |
| | Maria Igum | 18,865.60 | 943.28 | 19,808.88 |
| | Lina Sazaka | 26,705.00 | 1,335.25 | 28,040.25 |
| | Veronica Siune | 34,263.00 | 1,713.15 | 35,976.15 |
| | Joe Munvi | 39,910.05 | 1,995.50 | 41,905.55 |
| | Reuben Baita | 19,984.74 | 999.24 | 20,983.98 |
| | Rebecca Michael | 26,300.00 | 1,315.00 | 27,615.00 |
| Total | 2,891,582.58 | 144,579.13 | 3,036,161.71 | |
Judgment accordingly.
_______________________________________________________________
GP Lawyers: Lawyers for the plaintiffs
Solicitor-General: Lawyer for the First, Second, Third & Seventh Defendants
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