Lebasi v Klembasi [2018] PGNC 604; N8900 (11 May 2018)

N8900

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 1107 OF 2007

BETWEEN
DAVID LEBASI AND 30 OTHERS
Plaintiffs

AND
STEVEN KLEMBASI
First Defendant

LASSAM PHILIP, KEVIN SAMOA, MICKEY JOSEPH, NOAH MALAI AND HAROLD SAMOA
Second Defendants

AND
THE NATIONAL FISHERIES AUTHORITY
Third Defendant

THE INDEPENDENT STAE OF PAPUA NEW GUINEA
Fourth Defendant

Alotau: Toliken J
2016: 20^th, 22^nd September
2017: 05^th May
2018: 11^th May

CIVIL – Claim for Damages – Apprehension of plaintiffs by villagers and government officials and subsequent detention purportedly for breach of National Fisheries Act 1995 and Regulations – Confiscation and detention of fishing equipment and dinghies – Legality and Constitutionality of arrest and detention – Legality of confiscation of properties.

LIABILITY FOR DAMAGES - General Damages - Damages for mental stress and frustration - Damages for Breach of Constitutional Rights – Exemplary Damages - Damages for economic loss and future economic loss.

Cases Cited:

Nil
Counsel:

E. Hampalekie and A. Yauieb, for the Plaintiffs
F. Kuvi and F. Alua, for the First, Second and Third Defendants
Nil appearance for the State.

JUDGMENT ON LIABILITY

11^th May 2018

1. TOLIKEN J: This is a class action by the Plaintiffs who are named in the Schedule to the Writ of Summons led by David Lebasi. In their Writ of Summons and Statement of Claim filed on 29^th September 2007, the Plaintiffs claim damages against the Defendants for Unlawful imprisonment, breach of Constitutional Rights, unjust and unlawful detention of properties or chattels.
   

THE PARTIES

2. The Plaintiffs are villagers from Ware, Kwairawa and Anagusa Island, Samarai - Murua District of Milne Bay Province. And they sue in their respective individual capacity.
   
3. The First Defendant Steven Klembasa is an employee of the Third Defendant (the National Fisheries Authority) based in Alotau, Milne Bay Province and in that capacity is said to be thus authorised by National Fisheries Authority to enforce the Fisheries Laws in the province, and is thus sued in that capacity.
   
4. The Second Defendants, Lassam Philip, Kevin Samoa, Mickey Joseph, Malai Noah and Harold Samoa are adult persons from Ware Island and are sued in the personal capacities.
   
5. The Third Defendant is a statutory authority established under the Fisheries Management Act 1995 (FMA) for the purposes of regulating and managing the nation’s fishery resources and activities and is thus sued in that capacity.
   
6. The Fourth Defendant is the State and is being sued pursuant to the Wrongs (Miscellaneous Provisions) Act Ch. 279 and the Claims by and Against Act 1996.
   

THE CLAIM

7. The Plaintiffs claim to be artisan fishermen who dive for and harvest beche-de-mer commercially during the beche-de-mere season as authorized by NFA. They claim that:
   
   7. On 07^th February 200[5], the Plaintiffs were diving for beche-de-mer in their traditional fishing waters during the authorized beche-de-mer season on the reefs/islands known as Nabaina. They were approached by the Second Defendants purportedly with authority of the First Defendant and forcefully warned to cease diving and accompany them to Ware Island where they were told the First and Third Defendant were waiting for them.
   8. The Second Defendants were armed with bush knives, axes and other weapons including a shotgun. They threatened and assaulted the Plaintiffs and forcefully arrested them against their will without any lawful excuse from the Police and or the Courts and took them to Ware Island. There members of the community lined up the Plaintiffs on the beach and assaulted them using bush knives, sticks and stones and fists and also threw stones and sticks at their boats causing damage.
   9. The First Defendant and two policemen arrived on Ware Island on 08^th February 2007 and interviewed the Plaintiffs and then took them to Samarai Island, where they confiscated four (4) dinghies, three bags of beche-de-mere and diving and fishing gear and locked them at Samarai.
   10. The Plaintiffs were taken to Alotau, without their personal items including boats and fishing gear and were locked up at the Alotau Police Station for six hours without being told of the charges to be laid against them.
   11. The Plaintiffs were later released after six hours upon enquiry by a Lawyer from Patterson Lawyers, but were warned not to leave Alotau as they were going to be charged and brought before the Court within two weeks.
   12. Out of fear of the authority and that warning the Plaintiffs stayed in Alotau against their will and only returned to their respective villages after two weeks when no charges were laid against them.
   13. The Plaintiffs were told to care for themselves for the period they were in Alotau. The Principal Plaintiff provided accommodation and fed all 31 Plaintiffs during the period.
   14. The Plaintiffs’ boats and other equipment were returned to them several months later on or about June 2007 on instructions from the Milne Bay Provincial Government authorities.
   15. The Defendants’ actions resulted in the unlawful imprisonment of the Plaintiffs, the loss of their fishing gears and harvested beche-de-mere.

Particulars of unlawful imprisonment and breaches of Constitutional Rights

1. The Plaintiffs were detained at the Alotau Police Station against their will and for no apparent reason and no reasonable and without being charged with any offence.
2. The 32 Plaintiffs who are islanders in the Samarai-Murua District were further verbally restrained from returning to their village by the Police and the First Defendant and were told to await their charges in Alotau at their own expenses.
   

100. They were not fed and or provided food and shelter and were forced to remain in Alotau against their will and therefore were denied their freedom of liberty and movement,
     

Thereby breaching their Constitutional Rights under Section 42 of the Constitution.

16. The Defendants also unjustly and unlawfully detained the plaintiffs’ diving and associate gears, harvested beche-de-mer, thus preventing the Plaintiffs from carrying out their day to day activities during the beche-de-mer season thus depriving them to selling beche-de-mer to earn income, particulars of which are set out as follows:
    

Particulars of properties unjust and or unlawfully detained and deprived

1. ... 2 x 23 ft banana boats and 2 x 19 ft banana boats
2. 3 x 40hp Yamaha Engines and 1 x 30hp Yamaha Engine

100. 4 and ½ zoom fuel

4. Goggles, flippers and associated fishing and diving gears
5. Over 512 kilograms of harvested beche-de-mer.

17. Further the Principal Plaintiff took out six (6) containers of zoom and a banana boat with rations and material as a loan from RFI Company Ltd to dive for Beche-de-mer in order to sell to RFI Enterprises to earn profit, however, as a direct result of the unlawful actions of the Defendants, the Principal Plaintiff defaulted in repaying the loan to RFI which resulted in RFI commencing a separate recovery proceedings against the Plaintiff claiming a total amount of K20,000.00 for the items given out as loan.
18. As a direct result of the Defendants actions, the Plaintiffs jointly and severally suffered losses and suffering including losses of harvested beche-de-mere the particulars of which are;
    1. The Plaintiffs each and severally suffered mental stress, frustration, pain and suffering and embarrassment and ridicule as a result of the unlawful assault, arrest and detention and actions and or omissions of the Defendants.
    2. The Plaintiffs also suffered losses and expended monies to cater for their stay in Alotau at the verbal restraint of the Police.
    100. The Plaintiffs were also unlawfully detained in the Police Cells for six (6) hours without being charged with any offence recognized by law.
    4. The Police also detained some of the personal effects belonging to the Plaintiffs
    5. The Plaintiffs lost over K80,000.00 in expected earnings from the harvested beche-de-mere.
    6. Future economic loss for depriving them of further catch during the authorized beche-de-mere season.

19. AND THE PLAINTIFF THEREFORE CLAIMS:

a) General Damages

b) Damages for mental stress and frustration

c) Damages for Breach of Constitutional Rights

d) Exemplary Damages

e) Damages for economic loss and future economic loss

f) Special damages

g) Costs

DEFENCE/CROSS - CLAIM

8. The First Defendants essentially countered that they had effected citizen arrests on the Plaintiffs for harvesting beche-de-mer using illegal gear and methods and they deny assaulting the Plaintiffs in the process. They also deny liability for all other heads of claim by the Plaintiffs.
   
9. The First Defendants also filed a Cross-Claim against the Plaintiffs. They cross-claimed for damages for trespass and for the value of beche-de-mer allegedly harvested on waters and reefs which they claim to be the customary owners of.
   
10. All other Defendants denied liability. The Third Defendant claimed that Plaintiffs had harvested beche-de-mer using illegal gear and therefore cannot benefit from their illegal acts. It also denied breaching the Plaintiff’s Constitutional rights as their detention at the Alotau Police Station was lawful and further that it is not responsible for the detention of their properties.
    

BACKGROUND

11. This matter has a pretty long history (which I do not wish to canvass in any great detail) before it came to my docket. For the purpose of this judgment, I endeavour to enumerate only – in chronological order – the pertinent events to give a general idea how the case progressed over the 11 years of its life in the court system.
    

28 Sept 2007 – Writ of Summons Filed in Waigani.

19 Nov 2007 – Elemi Lawyers files Notice of Intention to Defend for Third Defendant.

28 Jan 2008 - Third Defend Files Defence.

13 Mar 2008 – Solicitor General files Notice of Intention to Defend in behalf of the Third and Fourth Defendants.

01 Jul 2008 – Third Defendant files motion to amend Defence

08 Jul 2008 - Plaintiffs file Notice of Motion for Summary Judgment against second, Third and Fourth Defendants.

09 Jul 2008 – Leave granted to Third Plaintiff to amend its Defence within 7 days.

14 Jul 2008 – Third Defendant file Amended Defence. Affidavit of Service of Amended Defence on Plaintiffs’ Lawyers filed 15 July 2008.

03 Sep 2008 – Default Judgment entered against Second Defendants with damages to be assessed. Default judgment against Third and Fourth Defendants refused.

28 Oct 2008 – Third Defendant file Notice of Discovery.

28 Nov 2008 – Plaintiffs file List of Documents in their possession.

04 May 2009 – Elemi Lawyers file Notice of Intention to Defend in behalf of Second Defendants.

29 May 2009 – Elemi Lawyers file Notice of Motion to Set Aside default judgment against the Second Defendants and to file Cross-claim against Plaintiffs.

12 Jun 2009 – Plaintiffs file Notice of Motion to strike out Third Defendant’s Defence for pleading general issue and for matter to set down for trial for assessment of damages.

27 Jul 2009 – Second Defendants file Defence and Cross-Claim.

21 Sep 2009 – Elemi Lawyers file Notice of Motion for default judgment against Plaintiff/Cross-defendant for failing to file defence to Cross-Claim.

30 Oct 2009 – Plaintiffs file Notice of Motion to dismiss Second Defendants/ Cross-Claimants and, inter alia, for abuse of process.

11 Nov 2009 – Plaintiffs Notice of Motion filed 30^th October 2009 is dismissed – Default judgment entered for the Cross-Claimants on their Cross-Claim on liability generally with damages to be assessed – Plaintiffs’ Statement of Claim is dismissed for being and abuse of the Court’s process.

25 Nov 2009 – Plaintiffs file Notice of Motion to set aside or vary orders of 11 November 2009.

07 Jul 2010 – Orders of 11 November 2009 set aside in its entirety.

16 Nov 2012 – Statement of Agreed and Disputed Facts & Legal Issues filed.

17 Apr 2013 – Revised Statement of Agreed & Disputed Facts & Legal Issues filed.

26 Jun 2013 – Notice of Hearing of Matter in Alotau on 19, 20 September 2013.

08 Aug 2013 – Notice of Trial for assessment of damages in Alotau on 18 – 20 September 2013.

06 Sep 2013 – Notice of Trial for in Alotau for same period. Hearing did not eventuate.

12 Dec 2013 – Notice of Hearing for trial for 17 – 19 February 2014 in Alotau. Trial did not take place – File still in Waigani at this stage.

27 Oct 2015 – Order that the matter be transferred to Alotau for allocation of trial date.

21 Nov 2016 – Trial of matter commenced at Alotau.

12. As we can see from the above chronology of events, certain orders for default judgments were made and subsequently set aside. The last of these were the orders of 07 July 2010 which set aside the orders of 11 November 2009 which had entered default judgment for the Second Defendants/Cross-Claimants with damages to be assessed, and the dismissal of the Plaintiff's entire Statement of Claim. The orders of 07 July 2010 set aside the orders of 11 November 2009 in its entirety. Hence the Plaintiffs claim and the Second defendants/Cross-Claim are back on board.
    

UNCONTESTED FACTS

13. The following facts are not contested:
    
    1. That the Plaintiffs are from Ware Island in the Milne Bay Province
2. Between 05^th January and 07^th January 2005, the Plaintiffs were harvesting beche-de- mer in the surrounding reefs and smaller islands near Ware Village.
3. The Plaintiffs were harvestin Beche-de-mer during Open-Season or time period authorized by the National Fisheries Authority
4. The Second Defendants effected citizen’s arrest on the Plaintiffs on 07 February 2005.
5. The First Defendant and two others, a Policeman and another government official arrived at Ware Island on 08^th February 2005.
6. At or about 9.00a.m on 09^th February 2005 the First Defendant interviewed the Plaintiffs and took all of them to Samarai Island.
7. The First Defendant confiscated four (4) dinghies, 3 bags of beche-de-mer and other diving and fishing gears and locked them up at Samarai.
8. The Plaintiff were later taken to Alotau and locked up in the Police Lock-up there.
9. The Plaintiffs were released from the Police Lock-up six (6) hours but were advised to remain in Alotau for two weeks for the Police to press charges later.
   10. The Plaintiffs were never charged by the Police.
11. The Plaintiffs were released and returned to their villages two weeks later.

DISPUTED FACTS

14. The following facts are, however, disputed:
    
    1. On apprehension on 07^th February 2005, the Plaintiffs were not assaulted, however, the situation was tense because Mr. David Lebasi was the elected customer for Ware Ward.
    2. As Counsellor of Ware Ward Mr. Lebasi had abused his position of power and trust mandated by the people of Ware Island.
    3. All Plaintiffs were using compressor/hooker gear in search for beche-de-mer products.
    4. All Plaintiffs had used outlawed fishing gears to search for beche-de-mer.
    5. All Plaintiffs were illegally fishing and/or conducting illegal activities on the reefs nearby Ware Island.
    6. The only equipment damaged at the time of the Plaintiffs apprehension was damage done to the compressor hose.
    7. The Second Defendant together with Ware Island Community effected citizen’s arrest on the Plaintiffs.
    8. The customary reefs and or islands where the Plaintiffs were fishing belong to the Meigoga Clan Pana-Ala-Alan Island and to the entire population of Ware Island.
    9. The reefs on which the Plaintiffs were illegally harvesting beche-de-mer is traditionally owned by the Ware Islanders, thus the Plaintiffs were trespassing on customary waters of the Ware Islanders.
    10. The institution of the District Court proceedings in DC No. 45 of 2005 and now the current National Court proceedings (WS 1107 of 2007) amounts to duplicity and thus is res judicata.
    11. The Plaintiffs were properly apprehended and delivered to the First Defendant.
    12. On 07^th February the Defendants were armed with bush knives , axes and other weapons including a shotgun threatened and assaulted the Plaintiffs and forcefully arrested the Plaintiffs against their will and without any lawful excuse from the Police and or the Courts and took them to Ware Island.
    13. At Ware Island members of the Community lined the Plaintiffs on the beach in a single file and further assaulted the Plaintiffs using bush knives, sticks and stones, fists and threw sticks and stones at the plaintiffs’ boats causing damage.
    14. The Plaintiffs were detained at the Alotau Police Station against their will and for no apparent or reasonable and without being charged by the Police.
    15. The 32 Plaintiffs who are Islanders in the Samarai-Murua District were further verbally restrained from returning to their village by the Police and the First Defendant and were told to await their charges in Alotau at their own expenses.
    16. The Plaintiffs were not fed or provided food and shelter and were forced to remain in Alotau against their will and choice.
    17. The Defendants unjustly and unlawfully detained the Plaintiffs’ dinghies, diving and associated gears and harvested beche-de-mer, thus preventing the Plaintiffs from carrying out their day to day activities during the beche-de-mer season, thus depriving them of income from beche-de-mer sales.
    18. David Lebasi took out six (6) containers of zoom and a banana boat with rations and materials a loan from RFI Company Ltd to dive for beche-de-mer to sell back to RFI for a profit.
    19. David Lebasi defaulted in repaying the loan to RFI resulting in RFI commencing legal proceedings against Mr. Lebasi for the sum of K20,000.000.
    20. As a direct result of the Defendants actions the Plaintiffs jointly and severally suffered losses.
    21. The Plaintiffs each and severally suffered mental stress, frustration, pain and suffering, embarrassment and ridicules as a result of the arrest, detention and actions and or omissions of the Defendants.
    22. The plaintiffs suffered losses and expended monies to cater for the stay in Alotau.
    23. The Plaintiffs were unlawfully detained for 6 hours.
    24. The Plaintiffs lost more K80,000.00 in expected earnings
    25. Future economic loss.
    26. After they were detained for six (6) hours, the Plaintiffs were asked not to leave Alotau for the next 2 weeks.
    27. The Plaintiffs four (4) dinghies and other equipment were only released to them several months later or about the month of June 2005upon intervention and request by the Provincial Administration authorities.
    28. The Defendants confiscated and detained the following properties:
        1. 2 x 23 ft banana boats and 2 x 19 ft banana boats
        2. 3 x 40hp Yamaha Engines and 1 x 30hp Yamaha Engine
        100. 4 and ½ zoom fuel
        4. Goggles, flippers and associated fishing and diving gears
        5. Over 512 kilograms of harvested beche-de-mer.

ISSUES

15. And the issues are:
    
    1. Whether or not the Plaintiffs were diving for beche de-mer in the Second Defendants’ reef, thus constituting trespass?
    2. Whether or not the Plaintiffs were illegally using hookah gear to harvest beche-de-mer?
    3. Whether or not the Plaintiffs were assaulted by the Second Defendants?
    4. Whether or not the Plaintiffs were unlawfully detained by the First Defendant and the Police for six (6) hours at the Alotau Police Station?
    5. Whether or not the verbal warning issued by the Alotau Police and the First Defendant to the Plaintiffs not to leave Alotau for the succeeding two (2) week amount to unlawful detention?
    6. Whether or not the Plaintiffs fishing/diving gear were unlawfully detained when the defendants failed to press charges?
    7. Whether or not the Defendants are liable for the unlawful assault occasioned on the Plaintiffs?
    8. Whether or not the Third and Fourth Defendants are liable for the economic loss suffered by the Plaintiffs due to the detention of their dinghies, fishing gears and beche-de-mer?
    9. Whether or not the Defendants through their actions and or omissions are liable to pay damages for the losses suffered by the Plaintiffs?
       

THE EVIDENCE ON CONTESTED ISSUES

16. By consent the trial was conducted through affidavit evidence. The Plaintiffs on their part gave notice pursuant to Section 35 of the Evidence Act Ch. 48 to rely on the following affidavits:
    
    1. Affidavit of David Lebasi sworn on 16 September 2012 and filed on 18 September 2012.
    2. Affidavit of Lua Noah sworn on 16 September 2012 and filed on 18 September 2012.
    3. Affidavit of Ledikeni Tensi Noah sworn on 16 September 2012 and filed on 18 September 2012.
    4. Affidavit of Peter Wesley sworn on 16 September 2012 and filed on 18 September 2012.
    5. Second Affidavit of David Lebasi sworn on 16 September 2012 and filed on 18 September 2012.
       
17. Pursuant to Section 36 of the Evidence Act, the Third Defendant gave notice of its intention to cross-examine all witnesses for the Plaintiffs on their affidavits. However, at trial the defence sought only to cross-examine David Lebasi, Lua Noah, Lendiken Tensi and Peter Wesley.
    
18. The Defendants on the other hand gave notice of intention to file the following 13 affidavits:
    
    1. Affidavit of Kevin Samoa sworn on 21^st April 2012 and filed on 29^th May 2009.
    2. Affidavit of Dipole Simi sworn on 18^th April 2009 and filed on 29^th May 2009.
    3. Affidavit of Yutico Henry sworn on 18^th April 2009 and filed on 29^th May 2009.
    4. Affidavit of Charlie Henary sworn on 18^th April 2009 and filed on 29^th May 2009.
    5. Affidavit of Nancy Philip sworn on 18^th April 2009 and filed on 29^th May 2009.
    6. Affidavit of Taylor Feiteli sworn on 18^th April 2009 and filed on 29^th May 2009.
    7. Affidavit of Lassam Philip sworn on 18^th April 2009 and filed on 29^th May 2009.
    8. Affidavit of Roger Alby sworn on 18^th April 2009 and filed on 29^th May 2009.
    9. Affidavit of Mickey Joseph sworn on 18^th April 2009 and filed on 29^th May 2009.
    10. Affidavit of Harold Samoa Simi sworn on 18^th April 2009 and filed on 29^th May 2009.
    11. Affidavit of Simi Spak Simi sworn on 18^th April 2009 and filed on 29^th May 2009.
    12. Affidavit of Peter Wailagogali sworn on 18^th April 2009 and filed on 29^th May 2009.
    13. Affidavit of Steven Klembasa sworn on 30th October 2012 and filed on 31st October 2012.
        
19. The Plaintiffs gave notice of their intention to cross-examine the following defence witnesses:
    1. Kevin Samoa sworn on 21^st April 2012 and filed on 29^th May 2009
    2. Dipole Simi sworn on 18^th April 2009 and filed on 29^th May 2009.
    3. Yutico Henry sworn on 18^th April 2009 and filed on 29^th May 2009.
    4. Charlie Henary sworn on 18^th April 2009 and filed on 29^th May 2009.
    5. Nancy Philip sworn on 18^th April 2009 and filed on 29^th May 2009.
    6. Taylor Feiteli sworn on 18^th April 2009 and filed on 29^th May 2009.
    7. Lassam Philip sworn on 18^th April 2009 and filed on 29^th May 2009.
    8. Roger Alby sworn on 18^th April 2009 and filed on 29^th May 2009.
    9. Mickey Joseph sworn on 18^th April 2009 and filed on 29^th May 2009.
    10. Harold Samoa sworn on 18^th April 2009 and filed on 29^th May 2009.
    11. Simi Spak sworn on 18^th April 2009 and filed on 29^th May 2009.
    12. Peter Wailagogali sworn on 18^th April 2009 and filed on 29^th May 2009.
        
20. At trial the Plaintiffs, however, only cross-examined Lassam Philip, Yutico Hendry on their affidavits and Steven Klembasa on his oral testimony.
    

THE PLAINTIFFS' CASE

David Lebasi

21. David Lebasi deposed that he is from the Meisoga clan of Panapatpat Island who are the traditional owner of Nabaina/ Abaiolan Islands. The islands and the surrounding sea and reefs have been their fishing grounds for ages. Annexed to and marked B to his Affidavit (Exhibit 1) is a Court Order (Application No. 046 of 2003 dated 06th March 2003) confirming Meisoga clan as the owner of Nabaina, Nagobi/ Abayola and Long Kosman Reefs)
    
22. When the 2005 Beche-de-mer season opened in January 2005, he gathered 25 men to assist him harvest beche-de-mer from around his traditional islands of Nabaina/Abaiolan. Peter Wesley requested to also harvest beche-de-mer there so he authorized him to come with five of his men.
    
23. On or about 07 February 2005, they organised themselves into three groups, the largest with 25 men were in the group he led, while the two smaller groups were with Peter Wesley. He dispatched his men to the reefs around Nabaina/Abaiolan while he remained on the island. At about 1.30p.m a group of 27 men led by Kevin Samoa, Mickey Joseph, Noah Mala and Harold Samoa arrived by dinghies from Ware Island. The men raided his camp on Nabaina/Abaiolan and stole:

i. Four full drums plus half drum of zoom which pumped out on Kevin Samoa's orders

ii. 1 x axe

iii. 1 x bush knife

iv. Sleeping gear

v. Cooking Utensils

vi. Water Container

vii. 427 kg of dried beche-de-mer

viii. one puppy

24. The men then ordered his men who were free diving out on a reef known as Nabaina outside Ware Island within his clan’s traditional fishing grounds, to stop diving and accompany them back to Ware Island where they said the local Police and National Fisheries Authority were waiting for them. Lebasi said the men from Ware were acting under the directions of the Provincial Fisheries Officer Mr. Steven Klembasa to arrest them. When they arrived at Ware Island, they were met by the Second Defendants who were armed with bush knives, sticks, and stones. The villagers shouted and screamed at them and ordered them to form a single line and paraded them before the Second Defendants and other villagers.
    
25. Lassam Philip and Kevin Samoa then instructed the villagers to assault him and his men. Lebasi said he was abused and physically assaulted by Lassam and by others including as Maika Joseph, Jericho James and Weliweli James. He suffered a fractured right arm for which the arm was on sling for a couple of weeks. His eyeglasses were also damaged.
    
26. Meanwhile another group of villagers had gone out to arrest Peter Wesley and his group. Peter Wesley and his group were also escorted up and also ordered to join the line. Then they were assaulted. They were hit with sticks and stones while at the same time shouting insults at them. The plaintiffs sustained physical injuries as a result. The villagers also threw stones at the Plaintiffs’ boats thus disabling them from continuing with their fishing activities.
    
27. The next day, 08^th February 2005, the First Defendant and two Policemen arrived at Ware Island. They interviewed the Plaintiffs and then escorted them to Samarai Island. There they confiscated four (4) dinghies and three (3) bags of beche-de-mer, fishing gears, and then locked them up.
    
28. The Plaintiffs were then taken to Alotau without their boats, personal items, and fishing gears and were locked up in the Police Cells without being informed of what their charges were. They were eventually released after six (6) hours when Lawyer Emmanuel Mambei intervened in their behalf.
    
29. When they were released, they were instructed not to leave Alotau until their charges were prepared. They waited for the Police to charge them, but after two (2) weeks they were instructed to return to their villages without being charged. All other Plaintiffs were villagers and had nowhere to stay, so David Lebasi took them and cared for them in his house until they left for their villages.
    
30. But while they were released, their boats were unnecessarily kept at Samarai and only released four months later when they sought assistance from the Milne Bay Administration. By letter dated 28 February 2005 (Annexure C to David Lebasi’s Affidavit) the Acting Provincial Administrator Mr. Henry Bailasi wrote to the First Defendant requesting the release of the 2 x 23ft dinghies, 2 x 19ft dinghies, 3 x 40 HP OBM Yamaha Engines and set of flippers. On 2^nd May 2005 the Acting Principal Advisor (Division of Fisheries and Marine Resources) Mr. David Bagita wrote to the Managing Director of the Third Defendant advising him that he had been directed to return the said properties to the Plaintiffs. By the time the boats were released the beche-de-mer season had closed thus denying him and other Plaintiffs the opportunity to harvest beche-de-mer to earn an income for their families.
    
31. Lebasi further deposed in his second Affidavit (Exhibit 2) that on 15 January 2005, he had negotiated for and was advanced a loan of K20,000 by RFI Enterprises for the purchase of the following items:

a. 1 x 23-footer dinghy plus 40 horse power engine.

b. 1 x 19-footer dinghy plus40 horse power engine.

c. 6 full drums of 200 Litres zoom at K800.00 per drum =K44800.

d. Goods and rations at K5000.

e. Items for fishing purposes.

f. other items.

32. The unlawful arrest and detention of the dinghies directly led to him (Lebasi) defaulting in his loan repayment. At the time of filing his affidavit he still owed K8000 for which he had received a Letter of Demand from RFI. (Annexure D to Exhibit 1 - No document was actually annexed)
    
33. Lebasi further deposed that the other Plaintiffs all lost personal effects, fishing gears and quantities of beche-de-mer as a result of their unlawful arrest and detention.
34. In cross-examination, Lebasi denied that he and the men in his group used hookah gear to harvest beche-de-mer. He said and maintained that it was Peter Wesley and his group only who used the hookah gear. He also said he did not seek medical attention for the injuries he said he sustained because they were not severe, and hence, he was not able to produce any medical reports. When asked about any documentary evidence to support his loan of K20,000.00 from RFI, he could not produce any, saying that he had given all documents to his lawyers. He cannot explain why no documents were annexed to his Annexure D of his affidavit. He maintained, though, that they were not illegally on the islands as his clan had been awarded ownership by the court.

Lua Noah

35. Lua Noah's evidence essentially is that he is from Ware Island and one of the Plaintiffs. He was one of the men invited by David Lebasi to harvest Beche-de-mer on Nabaina/Abaiolan island over which he said Lebasi is recognized as owner.
36. Noah essentially corroborated David Lebasi on the events of the 07th, 08th and 09th February 2005 and the days that followed culminating in their return to their villages two weeks later. Noah said he lost 200kg of beche-de-mer, goggles, flippers and food stuff on the island when they were first apprehended.
37. He denied in cross-examination that he used hookah gear to harvest beche-de-mer. When asked if he knew why they were arrested he said it was because of the Hookah gear, though, he denied knowledge that the use of hookah was forbidden. He maintained in re-examination that he did not use the hookah gear and that he and others were never charged for any offence while in Alotau.

Lediken Tensi

38. Lediken Tensi deposed that he was one of David Lebasi's close associates. He is one of the Plaintiffs and corroborated David Lebasi's evidence. He deposed that when they were brought back to Ware Island, they were confronted by angry villagers led by Lassam Philip, who abused, insulted and assaulted them resulting in a big fight. He and his group were, however, overpowered. He was personally physically assaulted and abused and Micky Joseph threatened to burn down his house. He said as a result of the actions by Kevin Samoa and Lassam Philip and his group he has been disowned by his family and relatives, and was even restricted from travelling to Alotau by Lassam Philip and his men after he returned to the village.
39. Tensi denied using the hookah gear when cross-examined and confirmed that only Peter Wesley's group had the hookah gear while Lebasi's group of 25 men including him were free diving. He could not tell how much beche-de-mer his group harvested, but said the 3 1/2 bags confiscated were from free diving and none were harvested with hookah gear. He named those with Peter Wesley as Kenon Edward, Ronny Edward, Peter Mark and Dalton Malona.

Peter Wesley

40. Peter Wesley deposed that sometime in 2002, he was given an old rusty hookah gear by the then Principal Advisor for Provincial Fisheries Mr. Onsa Kelokelo and his counterpart Mr. David Bagita. He was advised to use the apparatus wisely if he wanted to dive for beche-de-mer. He was not to use it in common diving spots or dive beyond 30 meters. However, he must assist communities if they needed assistance to diving around their reefs and also assist individual and parents for school fees.
41. On 05^th February 2005, he approached David Lebasi to inquire into the ownership of Long Cousman Reef. David Lebasi produced documents which convinced him that he (Lebasi) was the owner of Nabaina and Nabaiolan Island along the Long Cousman Reef. He then asked for his permission to use the hookah gear on his reef for their mutual benefit. Lebasi agreed, however, set certain conditions such as only certain reefs within a 20 meter zone were to be dived, that he was going to do sustainable harvesting around his reefs, and that he will help Lebasi to settle his outstanding debts with RFI.
42. On Sunday 07^th February 2005, Peter Wesley and his diver named Kwaiga and three other boys namely Ron Edward, Peter Mark and Dalton Malona left Alotau with the hookah. They met David Lebasi on the island.
43. On Monday 08^th February 2005, they left Lebasi on the Island and went to dive on a site outside of Nabaiolan. The tide was too strong when they got to the dive spot, so they put the engine off and were just floating when they saw a dinghy approach them from the East of the island. When the dinghy came closer, he noticed some men brandishing knives and axes at them. They could not escape in time as their operator panicked. The armed man boarded the dinghy swinging their bush knives at him and his boys. Fearing for their safety he and his boys jumped into the sea. They then watched helplessly as the men took the hooker gear and ordered them to follow them to Nabaiolan Island which they did.
44. On Nabaiolan Island they saw more armed men. Lebasi and his men had been ordered to form a single line and co-operate with them and Peter Wesley and his men ordered to join the others. They stood watching hopelessly as their belongings were looted and told that this was a State and National Fisheries Authority operation and that they were under citizen arrest. Then they were ordered to pack up their things and follow them to Ware Island where National Fisheries Authority Officers were waiting for them.
45. At Ware Island the whole community was waiting for them but there were no NFA Officers or Police Officers. They stood hopelessly as the community verbally abused and physically assaulted them and damaged their properties as they watched. After a while they were led to Mr. Lebasi's house and held under house arrest while waiting for Government Officials to arrive from Samarai. After three days Government Officials comprising the First Defendant Mr. Klembasa, the Area Manager Mr. Joe Papi and another officer and two Policemen arrived from Samarai.
46. The next day the 32 of the apprehended men were interviewed by the First Defendant and the following day they were taken to Samarai. Their boats and all their diving equipment including the hookah gear and 31/2 bags of beche-de-mer were confiscated and locked up there.
47. The Plaintiffs were then brought to Alotau and locked up for six hours before they were released without being charged, but not before being instructed not to leave Alotau while charges were been prepared for them. After two weeks they were eventually allowed to return to their villages without ever being charged for anything.
48. Peter Wesley confirmed that their boats and other properties were released to them after 4 months by which time the beche-de-mer season had closed thus denying them income which they would earned during the beche-de-mer season.
49. In cross-examination Peter Wesley admitted using the hookah gear but denied harvesting any beche-de-mer because they were apprehended before they could actually start diving.
    

DEFENCE CASE

50. While the Defence filed a total of 13 affidavits from its intended 13 witnesses only three (3) of these were called. These are Lassam Philip, Yutiko Hedrey and Steven Klembasa. Counsel did not seek to formally tender the affidavits of the other witnesses into evidence hence those affidavits remain outside of the evidence before the Court. The following is the evidence for the defence.

Lassam Philip

51. Lasam Philip deposed that at the time of his deposition he was the Secretary of the Village Court in the Ware Ward of Bwanabwana Local Government. The Lead or Principal Plaintiff David Lebasi was the Ward Councillor for Ware Island during the period 2002 - 2005.
52. On one of his trips to Alotau, Philip learned from someone from the Engineering Group of Islands that David Lebasi and other men in his company had in their possession a compressor/hookah gear (a prohibited equipment under the Fisheries Management Plan 2003 and the Fisheries Management Act 1998) and that they were based at Abaiwalan Island and diving for sea cucumber.
53. Concerned that the fishery will be depleted if the Plaintiffs’ illegal activities were allowed to go on, he returned to Ware Island on 3rd February 2005 and convened an urgent meeting of the Ware Ward Law and Peace Committee. He informed them of the matter and the Committee discussed the best way to stop David Lebasi and his group because they were exploiting beche-de-mer on Abaiwalan Island and nearby reefs which by custom belong to the people of Ware Island. The Committee decided that the matter be immediately reported to the Government authorities, particularly the Fisheries Officer on Samarai to stop David Lebasi and his illegal activities.
54. The Law and Peace Committee decided to call members of the Ward Development Committee, Church Leaders, Women's Leaders and other village Leaders to make a decision on the matter. The matter had by then attracted the whole community and they demanded immediate action to be taken against the Plaintiffs.
55. Following the meeting Philip and other leaders travelled to Samarai on 04th February 2005 and reported the matter to the Area Manager and the First Defendant Mr. Klembasa and lodged a complaint against the Plaintiffs for using illegal equipment to harvest beche-de-mer. They were assured of action by Klembasa and they returned to Ware Island. On their return they were, however, informed that the Community had decided that a team should be immediately deployed to Abaiwalan to stop the illegal activities, apprehend the offenders and confiscate boats and equipment.
56. A team led by Mickey Joseph, a member of the Ware Ward Development Committee and Defendant in these proceedings went to Abaiwalan Island on the morning of 06^th February 2005, apprehended the Plaintiffs and confiscated the compressor and beche-de-mer. They arrived back at Ware with the Plaintiffs at around 4.00p.m to an angry reception by the villagers.
57. In the circumstances prevailing at that time the compressor hose was broken and David Lebasi was pushed around but no harm was done to him. Sensing the likelihood of trouble Philip quickly intervened and took charge of the situation.
58. The next day 07^th February 2005, Philip reported the developments to the authorities on Samarai advising them that the situation was a bit tense and that an Investigation Team should be deployed to Ware to conduct interviews and take control of the situation.
59. The Investigation team led by Mr. Klembasa was dispatched on 08^th February 2005. When the team arrived on Ware, the Plaintiffs and their equipment were handed over to them. Interviews were conducted and the team travelled back to Samarai with the Plaintiffs. There they confiscated their equipment and dinghies. Philip deposed that he later heard that the dinghies and outboard motor engines were securely locked up in Samarai while the Plaintiffs and compressor were taken to Alotau.
60. Soon after that David Lebasi filed proceedings in the District Court on 15^th February 2005 against Philip and others for damages for the theft of beche-de-m er during the course of these events. Philip deposed that the District Court decided in their favour. He annexed copies of the Complaint and Summons upon Complaint but did not annex a copy of the orders.
61. In cross-examination Philip was asked if he was aware that the island in question were awarded to Mesioga clan to which the Lead Plaintiff belong. Philip said he is aware of that, however, said that the matter is under review and will be pursued after this case. And further that the matter was appealed but has not been heard until now.
    

Yutico Hedrey

62. Yutico Hedrey was the Officer In-Charge of Samarai Police Station and deposed to accompanying Steven Klembasa to Ware Island on 08^th February 2005. When they arrived on the island things had calmed down already. He confirms that 31 suspects were apprehended and arrested by Mr. Klembasa and that 2 x 19 footer Dinghies, 2 x 23ft dinghies, 3 x 40 HP Yamaha OBM engines, 1 x 30HP OBM engines, and 1 x Compressor/Hookah gear, 3 1/2 bags of beche-de-mer, 1 x set of diving hose, and 1 x set of diving flippers were confiscated.

Steven Klembasa

63. Stephen Klembasa is the First Defendant. He is currently an Enforcement Officer with the National Fisheries Authority. Steven Klembasa deposed that Lassam Philip had lodged a first complainant about the Plaintiffs' activities at the Provincial Fisheries Office in Alotau on Friday 04 February 2005. Then on Tuesday 06^th February 2005 a second complainant was lodged at the Samarai Area Office. They were having some logistical issues, but assured Philip that they will get to Ware Island on Wednesday 08^th February 2005.
64. On 08^th February 2005, he led a team to Ware Island, arriving there at around 8.00a.m. He was met and briefed by members of the Ward Development Committee and the community and had a debriefing. After about 30 minutes David Lebasi and others were handed over to him together with confiscated equipment. He then held a general meeting to ensure that the situation between the two factions on the island was controlled.
65. He interviewed the Plaintiffs. He found in their possession the hookah gear equipment and the beche-de-mer they had harvested illegally. He confiscated the equipment and also took into possession 2 x 23 footer dinghies powered by 2 x 40 HP OBM engines, the hookah, a hose, and 3 1/2 bags of beche-de-mer, 1 x set of diving hoses, and a set of swimming flippers.
66. His Team then returned to Samarai with the Plaintiffs and the confiscated items. At Samarai the two dinghies and OBM engines were safely locked away. The Plaintiffs and the compressor were then taken to Alotau for further processing. They were taken to the Alotau Police Station, but released two (2) hours later and were informed that formal charges would be laid at a later date.
67. Klembasa said neither he nor the National Fisheries Authority gave instructions for the apprehension of the Plaintiffs. Their apprehension was initiated and executed by the Ware Island people themselves.
68. Finally, he said that the situation was very tense at that time so the most reasonable approach was to take the Plaintiffs away from the Island.
69. In examination in chief Klembasa said in 2005 he was an Officer of the Milne Bay Provincial Administration attached to the Division of Fisheries and Marine Resources.
70. In cross-examination he denied knowledge of Peter Wesley being allowed to use the hookah equipment by Mr. Bagita. He denied directly or indirectly authorising the arrest of the Plaintiffs by the Ware Islanders.
    

FINDINGS OF FACT/DELIBERATIONS AND CONCLUSIONS

71. I find that when the Plaintiffs were apprehended on 07^th February 2005, the Plaintiff David Lebasi, who was the incumbent Ward Member for Ware Ward, was assaulted by Lassam Philip Lassam and others such as Maika Joseph, Jericho James and Weliweli James. But while he claimed to have sustained a fractured right arm he did not provide medical proof for that hence, I cannot find that he in fact suffered such injury, needless to say though that he may have indeed suffered some physical discomfort or superficial injuries. I find also that other plaintiffs were assaulted, if not manhandled by members of the Ware Community as the situation was tense.
    
72. I find that in as far as the conventional harvesting of beche-de-mer on customarily owned reefs were concerned, there was no abuse of power by the Plaintiff David Lebasi and others acting under his instructions.
    
73. However, the use of hookah gear by anyone including Peter Wesley and any other person was unlawful and in breach of the Fisheries Management Act and Regulations. Any instructions, permission, or exemption purportedly issued to Peter Wesley by any Officer of the State or Provincial Government was unlawful in the absence of an Exception Notice published under the Fisheries Management Act (s 30(4)) and do not excuse Peter Wesley and others in any way whatsoever.
    
74. I find that Peter Wesley had in his possession a compressor/ hookah equipment which has been declared under the Fisheries Management Act and Regulations by publication of Notice in the National Gazette as a prohibited equipment for harvesting of beche-de-mer. On the evidence before me I find that Peter Wesley intended to and indeed travelled to Nabaiolan Island for the purpose of harvesting beche-de-mer using compressor/hooker gear. I am also satisfied that he did so with express permission of David Lebasi.
    
75. I find, however, that Peter Wesley and his group of men (his boat operator named Kwaiga, and three other boys namely Ron Edward, Kenny Edward, Peter Mark and Dalton Malona) were in the process of using the gear, but before they could make the first dive, they were caught and apprehended by villagers from Ware Island and brought to Ware. I am satisfied that the hookah gear was damaged during the time the plaintiffs were apprehended.
    
76. I am not satisfied on the balance of probabilities, though, that all the other plaintiffs used the illegal fishing equipment to harvest beche-de-mer before and at the time of their apprehension. In fact, I find that the rest of the plaintiffs had been free-diving.
    
77. But did the Second Defendants effect citizen arrest on the Plaintiffs. Private citizens are empowered by Section 5 of the Arrest Act Ch.339. Section 5 provides:

5. Arrest without warrant by member of the public.

Subject to any requirements imposed by the law creating the offence, a person, other than a policeman, may, without warrant, arrest a person whom he believes on reasonable grounds—

(a) is committing; or

(b) has committed,

an offence for which the penalty is imprisonment.

78. There is evidence by the Defendants that they were concerned about the use of compressor/hookah equipment by the Plaintiffs and this prompted them to apprehend the Plaintiffs after consulting with Government authorities on Samarai. A more compelling reason it appears, however, was because the Ware villagers claimed ownership of the islands on which the Plaintiffs were harvesting beche-de-mer. It appears to me therefore that the Plaintiffs apprehension was for both reasons.
    
79. In so far as alleged breach of the Fisheries Management Act is concerned, Fisheries Officers (which includes members of the Police and Defence Forces (s 48)) are empowered to arrest any person whom they have reason to believe has committed a fisheries offence and seize, take, detain, remove and secure any equipment used in relation to fishing or any fish, or fish products intended to be used in or in relation to the commission of an offence under the Act. (Section s 49)
    
80. It is to be noted that Section 49 of the Fisheries Management Act does not specifically exclude the operation of Section 5 of the Arrest Act. Therefore, it may be safely held that the villagers of Ware Island initially effected citizen arrest on the plaintiffs. The power of seizure of illegal equipment and illegally caught fish and fish products by persons other than Fisheries Officers appear to me not to be available to citizens when making citizen arrest for breaches of the Fisheries Management Act and Regulation.
    
81. I find that while the Defendants may have been armed with bush knives, axes and other weapons and used force against the Plaintiffs they were properly apprehended and delivered to the First Defendant and the Police Officers who accompanied him to Ware Island. The use of more force than necessary to apprehend the Plaintiffs was, however, not warranted and I do find that the Plaintiffs may have suffered shame, embarrassment, and ridicule when they were rounded up and paraded before the Ware Villagers. I also find that in the course of their apprehension and seizure of their boats and equipment, some boats were damaged.
    
82. I find that the customary reefs and/ or islands where the Plaintiffs were fishing belong to the Meisoga Clan of Pana-Ala-Alan Island. Without proof to the contrary, those islands and surrounding reefs were awarded to the Mesioga Clan by the Misima District Court [Local Land Court?] (Application No. 046 of 2003 dated 06th March 2003) which confirmed Meisoga clan as the owner of Nabaina, Nagobi/ Abayola and Long Kosman Reefs. Any other person who is not a member of the Mesioga Clan would merely have permissive rights at the very least. The said order has not been set aside by a competent court and as such still has full force and effect. With the authority of the Court Order in his favour David Lebasi and those under him were not trespassing on customary waters of the Ware Islanders.
    
83. While David Lebasi may have instituted proceedings in the District Court purportedly as DC No. 45 of 2005, the Defendants have failed to provide proof that the matter has been dismissed by the District Court by providing the necessary Certificate of Dismissal by the Clerk of Court. The defendants deposed that the matter was struck out (not dismissed on the merits) hence, it is open to me to hold that the matter is not res judicata.
    
84. I find that at the relevant time, the First Defendant Steven Klembasa was not a Fisheries Officer appointed under the Fisheries Management Act (s 48), but rather an Officer of the Milne Bay Provincial Government. As such he had no greater authority in enforcing the Fisheries Management Act, let alone effect an arrest, than that would be available to any citizen under the Arrest Act. Further to that, he had no authority, real, or apparent or ostensible from the National Fisheries Authority to take any action for and on behalf of the Authority.
    
85. Yutico Hendry who accompanied Steven Klembasa to Ware Island and assisted him in interviewing and apprehending the Plaintiffs was the Officer In-Charge of Samarai Police Station. As a Policeman Yutico Hedrey is deemed by s 48 of the Fisheries Management Act as a Fisheries Officer, and as such his actions would be perfectly lawful. I note, however, that the operation appears to have been headed and controlled by Steven Klembasa. Be that as it may, the involvement of the Police, particularly by the OIC of Samarai Police Station brought some legitimacy to the whole affair up to the time the Plaintiffs were taken to and held in custody at the Alotau Police Station.
    
86. But was the detention of the Plaintiffs at the Plaintiffs at the Alotau Police Station unlawful? Given the fact that the Plaintiffs were apprehended firstly by the villagers of Ware for alleged breach of the Fisheries Management Act and their referral to Yutico Hedrey and Steven Klembasa who took them to Alotau for that purpose, their detention there was not unlawful. A prosecutorial decision had to be made and the police erroneously were of the opinion that only the National Fisheries Authority can institute proceedings, when in fact any Fishery Officer could lay an information for breaches of the Act in the District Court.(s 57) The six -hour detention in my opinion was therefore neither unreasonable nor unlawful for that matter.
    
87. What about the verbal instructions purportedly by the police for the Plaintiffs not to leave Alotau? Did that constitute an unlawful detention? I think not, because the Plaintiffs were not restrained in any way. The evidence does not show who actually instructed them not to leave Alotau. They were free to move around and the evidence shows that they had access to a lawyer at the time of their detention at the Alotau Police Station. The fact that they may have been simple islanders does not detract from the fact that they were free men who could have easily made their way back home.
    
88. As regard the Plaintiffs' properties that were seized and were not returned immediately to them when it was decided not to pursue prosecution, I do find that these properties were in fact unlawfully detained resulting in economic loss to the owners of those properties. The properties were:
    
    1. 2 x 23 ft banana boats and 2 x 19 ft banana boats
    2. 3 x 40hp Yamaha Engines and 1 x 30hp Yamaha Engine
    100. 4 and ½ zoom fuel
    4. Goggles, flippers and associated fishing and diving gears
    5. harvested beche-de-mer.
       
89. The Plaintiff David Lebasi claimed for loss of business arising from a loan of K20,000 he took from RFI Ltd to purchase equipment and rations. These include:

a) 1 x 23-footer dinghy plus 40 horse power engine

b) 1 x 19-footer dinghy plus40 horse power engine

c) 6 full drums of 200 Litres zoom at K800.00 per drum =K44800

4. Goods and rations at K5000
5. Items for fishing purposes
   6. other items

90. Lebasi, however, failed to produce proof of this by providing a copy of his loan agreement with RFI. He deposed to recovery attempts by RFI, but again failed to provide any proof for that, but sought instead to explain away his failure by saying that he had given all the documents to his Lawyers. He in fact made reference in his affidavit to such a document, but failed to attach it. His claim under this head therefore cannot be sustained and must therefore fail.
91. Now, as regard any loss suffered by the Plaintiff Peter Wesley and his boys, I find that Peter Wesley was in the process of harvesting beche-de-mer by using a banned equipment, and as such, he and Ronny Edward, Kenny Edward, Peter Mark and Dalton Malona cannot benefit from their illegal and unlawful enterprise, regardless of whether or not they completed what they had set out to do. The fact that they were not prosecuted is of no significance in my opinion. Their claims for loss of properties, or economic loss as a result of the prolonged detention of any of their properties must therefore fail.
    
92. In the end, I find that the Plaintiffs, excepting for Peter Wesley, Ronny Edward, Kenny Edward, Peter Mark and Dalton Malona, had suffered:

1. Embarrassment, shame, and ridicule when they were apprehended and subsequently assaulted and paraded before the Villagers of Ware Island by the Second Defendants.

2. Damage to their properties including boats and fishing gear.

3. Economic loss when their properties, including boats, fishing gear and seized beche-de-mer which were unlawfully detained after it was decided that no prosecution was to be mounted against them for breach of the Fisheries Management Act.

93. All claims by Peter Wesley, Ronny Edward, Kenny Edward, Peter Mark and Dalton Malona are dismissed.

94. Having found that the Plaintiffs were not trespassing when they harvested beche-de-mer on reefs within an area of islands, the ownership of which were awarded by the Misima District Court to Mesoiga Clan of Pana-Ala -Alan Island to which David Lebasi belong, the Second Defendant's Cross-Claim for trespass ought to be dismissed.

95. Now who is liable for damages to the successful Plaintiffs? Should it be the Third Defendant, or the Fourth Defendant? It is clear to me that the Fourth Defendant directly did not have a hand in this saga even though the actions taken by the Ware Islanders (hence the Second Defendants) and the First Defendant were purportedly for breach of the Fisheries Management Act, which the Third Defendant administers. The First Defendant, who evidently took charge of the matter was not then a Fishery Officer, hence, his actions cannot bind the Third Defendant, even though he may have been well meaning. The OIC of Samarai Police Station Yutiko Hedrey was involved, but the evidence does not show that he, at any stage, acted in his capacity as a Fishery Officer, by virtue Section 48 of the Fisheries Management Act.

96. What is clear to me, though, is that the First Defendant and Yutico Hedrey were officers of the Milne Bay Provincial Government and the Police Force respectively. which are instrumentalities of the Fourth Defendant - the State. They are therefore servants of the State and in this matter acted within the scope of their employment to help enforce the law, in this case the Fisheries Management Act. The State is therefore vicariously liable for the acts and omissions of the First Defendant pursuant to Section 1(1)(a) of the Wrongs (Miscellaneous Provisions) Act Ch. 297.

97. Therefore, I find there that the Third Defendant is not liable for the torts committed against the Plaintiffs (excepting for Peter Wesley, Ronny Edward, Kenny Edward, Peter Mark and Dalton Malona whose claims I have dismissed). I, however, find the Fourth Defendant is liable for the torts committed by the First Defendant.

98. The Fourth Defendant is not, however, liable for the torts committed by the Second Defendants, which went over and in excess of what was reasonable in their exercise of the power to make citizen arrest under the Arrest Act.

99. The matter is adjourned for assessment of damages.

________________________________________________________________
M.S.Wagambie Lawyers: Lawyers for the Plaintiffs
Elemi Lawyers: Lawyers for the First, Second & Third Defendants
The Solicitor General: Lawyers for the Fourth Defendant