Pupu v Kupo [2020] PGNC 450; N8573 (9 October 2020)

N8573

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 615 OF 2003

BETWEEN:
BUKA PUPU
Plaintiff

AND:
JOSEPH KUPO, the Commissioner for Police
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Wabag: Makail J
2020: 5^th & 9^th October

TORT – Liability – Unlawful Police raid – Unlawful destruction of property – Destruction and looting of trade store goods – Shooting and killing of domesticated animals and pet – Proof of - Evidence uncontroverted – Liability established.

DAMAGES – Assessment of damages – General damages – Economic Loss – Special damages – Exemplary damages.

INTEREST – Claim for interest – Different rates of interest – Whether damages awarded in tort falls within Section 4 (1) of the Judicial Proceedings (Interests on Debts and Damages) Act 2015

Cases cited:

Philip Nare v. The State [2017] SC 1584
Jonathan Mangope Paraia v. The State [1995] N1343
Abel Tomba v. The State [1997] SC 518
Alphonse Willie v. Simon Kaupa [2016] N6553
Jacinta Albert v. Dr. Joseph Aine [2019] N 7772
Thomas Aiwara v. Cocoa Board of PNG [2017] N6788
Counsel:

Mr. D. Piam, for the Plaintiff
No Appearance, for the Defendants

JUDGMENT

9^th October, 2020

1. MAKAIL J: This is a claim for damages against members of the Police for an unlawful raid and destruction of property at Liop village, Laiagam District of Enga Province on 11^th and 12^th December 1999. The property which was destroyed and looted comprised of trade store goods, live domesticated animals and pet. The State is sued as being vicariously liable under the provisions of the Wrongs (Miscellaneous Provisions) Act. Ch 297.

Liability

2. This is a case where the Plaintiff has not named individual members of the Police as primary tortfeasors and as Defendants in the Writ of Summons but has identified them at paragraph 4 of the statement of claim. On the authority of the Supreme Court decision in Philip Nare v. The State [2017] SC 1584 the omission in naming them as Defendants does not mean that no cause of action has been disclosed and the proceedings is incompetent. It survives.

3. The evidence is largely uncontested but subject to the rules on admissibility of evidence, comprised of three (3) affidavits of the Plaintiff (exhibits “P1”, “P2” & “P3”) affidavit of George Tomba (exhibit “P4”) affidavit of Amos Kele ( exhibit “P5”) affidavit of Nisi Buka (exhibit “P6”) affidavit of Jeffery Lambu (exhibit “P7” ) and affidavit of David Buka (exhibit “P8”).

4. Except for the Plaintiff’s account of events on 11^th December 1999 on account of it being hearsay as he was not present and witnessed the raid and destruction of the trade store goods and animals, I am satisfied that Nisi Buka, David Buka, George Tomba, Amos Kele and Jeffery Lambu were able to identify unidentified and identified group of policemen who were responsible for conducting the raid, destruction and looting of the Plaintiff’s trade store goods and domesticated animals. Some of those identified and named by the Plaintiff were Sergant Bob Kembong, Reserve Constable Nandan, Senior Constable Andrew, Constable John Miukin, Senior Constable Chris and Reserve Constable Lupain. These group of policemen were from Enga, Simbu and Western Highlands Provinces. They were responding to a tribal fight between Paliel and Warain tribes at Mamal as a result of which the Laiagam High School was burnt down. They travelled in Police marked vehicles.

5. On their evidence I find that between 11^th and 12^th December 1999, members of Police from Enga, Simbu and Western Highlands Provinces responded to a tribal fight and in the process, raided, destroyed and looted the Plaintiff’s trade store goods, shot and killed pigs, goats, sheep and a pet (cat). Some of the members of the Police were those identified above. I am satisfied that there was no probable cause or reason for the actions of the police and the raid and destruction of the trade-store goods and domesticated animals was unjustified and unlawful. I further find that the members of the Police were acting in the course of their duties and the Second Defendant is vicariously liable under the Wrongs (Miscellaneous Provisions) Act, Ch 297.

6. Judgment on liability is entered against the Defendants with damages to be assessed.

Assessment of Damages.

7. The general rule is that a judgment on liability does not displace the onus placed on a Plaintiff to prove its loss.

8. Again, subject to rules on admissibility of evidence, the Plaintiff‘s evidence is largely uncontroverted. He claims the following damages:

6.1. General damages.
6.2. Economic loss.
6.2. Exemplary damages.
6.3. Special damages.
6.4. Interest at 8%.
6.5. Legal cost.

General Damages

1. Loss of Trade Store Goods
   

9. The trade-store goods that were destroyed and looted ranged from bags of rice to laundry detergents, particulars of which are set out in the affidavit of the Plaintiff (exhibit “P2”). The total sum claimed is K39, 017.35. In submissions, Mr. Piam of counsel for the Plaintiff conceded that the sum claimed is based on an estimated value of each good because the Plaintiff is not able to produce the receipts of payment for each good.

10. I note the Plaintiff produced some receipts of payment and invoices to corroborate the costs of the trade-store goods. See annexure “B” to the Plaintiff’s affidavit (exhibit “P1”). Based on the principle of restitution in integrum and consistent with the principle that the fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages (Jonathan Mangope Paraia v. The State (1995) N 1343, I will allow and award K39, 017.35.

2. Domesticated Animals and Pet
   

11. The Plaintiff’s uncontroverted evidence is that he lost 4 x pigs, 3x goats, 3x sheep, 2x cartons of live chicks, 2x live chicken boxes and 1x cat (pet). In addition, he lost 2x stockfeed bags. The total sum claimed is K6, 115.00. Mr. Piam, again, conceded in submissions that the sum claimed is based on estimates and prevailing market value of farm animals at that time in the locality. Applying the same principles outlined at [10] above, I will allow and award K6, 115.00.

Contingency

12. Counsel submitted that based on reported cases where the National Court has applied up to 50% rate to reduce the sum claimed as general damages for contingency, the appropriated rate would be 20%. Add K39, 017.35 and K6, 115.00 gives K45, 132.35. Applying the rate of 20% to the sum of K45, 132.35 the Court should award K36, 105.88. I uphold these submissions and I award K36, 105.88 for loss of trade store goods, domesticated animals and pet.

Economic Loss

13. The Plaintiff claimed K10, 000.00. This is a reduction of K5, 000.00 from K15, 000.00 claimed in the written submission.

14. Economic loss is one of the forms of special damages. As special damages it requires strict proof and there is no evidence of financial statements such as Profit and Loss Statements for years 1999 and 2000 to corroborate the Plaintiff’s assertion that his trade store business made a loss as a result of the raid.

15. I am prepared to award a conservative sum. However, but the Plaintiff has not provided figures to assist me to work out an appropriate sum. Furthermore, counsel did not refer me to a past case where a global sum was awarded for economic loss in a case where no figures are provided. I dismiss this claim.

Exemplary Damages

16. The Plaintiff claimed a sum of K10, 000.00. Mr. Piam submitted that because of what the members of the Police did constituted a continuous breach of the Plaintiff’s right and the State should be held liable for the breach.

17. Exemplary damages is punitive in nature and is generally awarded against the tortfeasor. Preferably, where a Plaintiff is seeking exemplary damages, the tortfeasor be named as one of the Defendants in the Writ of Summons. Additionally, the tortfeasor must be identified in the pleadings (statement of claim). These procedural requirements will put the tortfeasor on notice that the Plaintiff will be seeking exemplary damages against him.

18. In this case, the Plaintiff has identified the tortfeasors at paragraph 4 of the statement of claim. In addition, there is evidence identifying individual members of the Police and that there is evidence to establish that their actions was beyond a technical breach. For these reasons, it is sufficient to order each one of them to pay exemplary damages. On the authority of the Supreme Court decision in Abel Tomba v. The State [1997] SC 518, each of the members of the Police identified by the Plaintiff will be ordered to pay exemplary damages. I so do because they went outside the scope of their duties. As to the sum to be awarded, past cases show that the sum awarded may vary from case to case. In this case, I award K1, 000.00 to be paid by each member of the Police. For the six identified Policemen, I award a total sum of K6, 000.00.

Special Damages

19. Though the Plaintiff sought special damages, at trial, counsel informed that it will be abandoned. It is, therefore, abandoned.

Interest

20. The Plaintiff also claimed interest pursuant to the Judicial Proceedings (Interests on Debts and Damages) Act in two parts:

(a) Interest at the rate of 8% from date of issue of Writ to date of Judgment (Pre-judgment Interest).

(b) Interest at the rate of 2% from date of Judgment to date of final settlement (Post-judgment Interest).

21. For pre-judgment interest, there are two views on the application of Section 4 (1) & (2) of the Judicial Proceedings (Interests on Debts and Damages, Act, 2015. The decision by Cannings J in Alphonse Willie v. Simon Kaupa [2016] N6553 supported the view is that interest on all debts and damages where the State is a party is 2%. The other view expressed by the Deputy Chief Justice in Jacinta Albert v. Dr. Joseph Aine [2019] N7772, is that it does not and the Court has discretion to award interest up to 8%. See also

Thomas Aiwara v. Cocoa Board of PNG [2017] N6788. The issue is whether

damages awarded in tort fall within Section 4 (1) of the Judicial Proceedings

(Interests on Debts and Damages) Act and attract interest up to 8 % per annum.

22. With respect, I prefer the view held by Cannings J in Alphonse Willie v.

Simon Kaupa [supra] because when Section 4 (1) is read together with

Section 4 (2) any award of damages in a case where the State is a party under

Section 4 (1) such as in this case, an award of interest will be restricted to a rate

of 2% per annum under Section 4 (2). The rate of 2% also applies to

“Proceedings arising out of express or implied contract or mercantile usage

taken against the State”: See Section 4(2).

23. In the context of debts and damages, the underlying reason for making

provision for a 2% rate of interest under Section 4(1) & (2) is to reduce the

State’s liability on interest. For these reasons, I will award 2% interest on the

total judgment sum of K42, 105.88 for pre-judgment interest, (K36, 105.88

+K6, 000.00) from the date of issue of Writ to date of judgment. Similarly, 2%

interest shall be awarded on the unpaid judgment sum from date of judgment

until final settlement.

Orders

24. The Orders are:

1. Judgment on liability is entered against the Defendants.
   
2. Judgment in the sum of K36, 105.88 as general damages is entered against the Defendants.
   
3. Judgment in the sum of K6,000.00 as exemplary damages is entered against Sergeant Bob Kembong, Reserve Constable Nandan, Senior Constable Andrew, Constable John Miukin, Senior Constable Chris and Reserve Constable Lupain.
   
4. The Defendants shall pay interest of 2% from the date of issue of Writ to date of Judgment on the Judgment sum of K42, 105.88 and until final settlement pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.
   
5. Costs of the proceeding, to be taxed, if not agreed.
   

______________________________________________________________
Dowa & Piam Lawyers: Lawyers for the Plaintiff
Solicitor- General: Lawyers for the Defendants