Yalbees v Amaiu [2023] PGNC 320; N10481 (28 September 2023)

N10481

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 16 OF 2014

THOMAS YALBEES, WILSON KUYAKO & BEN LUNGA
FOR AND ON BEHALF OF THEMSELVES AND 155 OTHERS NAMED IN THE SCHEDULE TO THE STATEMENT OF CLAIM
Plaintiffs

V

TOM AMAIU, MANAGING DIRECTOR,
MACATA ENTERPRISES LIMITED
First Defendant

MACATA ENTERPRISES LIMITED
Second Defendant

INSPECTOR PEROU N’DRANOU
Third Defendant

SENIOR CONSTABLE HANSON TOKALI, ACTING POLICE STATION COMMANDER, GORDONS POLICE STATION
Fourth Defendant

TOAMI KULUNGA, COMMISSIONER OF POLICE
Fifth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Narokobi J
2022: 22^nd June
2023: 28^th September

TORTS – Negligence – Destruction to Property in Urban Settlement in Police raid - Damages - Assessment of damages – Principles of Assessment of Damages - Reasonable damages.
HUMAN RIGHTS – Violation of Human Rights – Assessment of Compensatory Damages – Comparable Awards - Reasonable Compensation.

This is a case which the plaintiffs claim negligence and breach of human rights. The question of liability was determined in the National Court in Yalbees v Amaiu (2018) N7393 on 2 August 2018. Before the matter went for assessment of damages, it was appealed to the Supreme Court in Amaiu v Yalbees (2020) SC2046. The appeal was in the main dismissed, but certain aspects of it was successful. The Supreme Court ordered that the trial on assessment of damages continue in the National Court before a judge other than the trial judge. This is the Court’s decision on assessment of damages after trial.

Held

(1) Considering the fact that the evidence is not corroborated, although the amount claimed is pleaded, and a valuation report is provided, little weight is placed on it, as the items valued were based on anecdotal evidence. Each Plaintiff that tendered evidence during trial on assessment of damages is allowed the amount claimed in the valuation report but discounted by 90% following the court’s approach in Francis Fuliva v Inspector Tony Wagambie Junior (2013) N5221 and Mano v Wagambie Junior (2023) N10410.
(2) Plaintiffs’ claim in excess of K500,000.00 will have K500,000 as the maximum amount used to apply the 90% discount. Well renovated houses around Port Moresby takes less than K500,000.00 to build and renovate. It will be less when people use their own labour to construct these houses. Additional corroborating evidence is necessary to allow anything over K500,000.00.
(3) The following rights were found to have been breached - s. 37(1) (protection of the law), s 41 (proscribed acts), and s 44 (arbitrary search and entry). Following Mano v Wagambie Junior, a police raid case, the following rights were found to have been breached - ss 36, 44 and 53 of the Constitution. The court awarded K15,000 to each Plaintiff. The circumstances of the case are similar. In both cases three rights were found to have been breached. K15,000 is awarded to each plaintiff for breach of human rights.
(4) Due to the short notice given to vacate the property, the violation of human rights was serious and continuous to meet the tests stipulated in s 12 of the Claims By and Against the State Act 1996. For parity with cases of similar circumstances, having regard to the case of Mano v Wagambie Junior, K5,000 is awarded to each Plaintiff for exemplary damages.
(5) No award for special damages is made although the Plaintiffs claim K61, 000.00 because no evidence has been provided to support the claim.

(6) The Plaintiffs claim damages for distress, pain and suffering. On liability the court has found that they were forcefully removed from places they were occupying without proper notice given to them. This was a distressing situation they endured. In Mano v Wagambie Junior, which has been considered to be similar to the present case, the court awarded K10,000 for distress, pain and suffering. K10,000 is awarded to each Plaintiff. The distress, pain and suffering was as a result of the negligence of the Second Defendant and it will consequently have to meet this category of damages.

Cases Cited:

Papua New Guinean Cases
Albert Baine v The State (1995) N1335
Alphonse Willie v Simon Kaupa (2016) N6553
Amaiu v Yalbees (2020) SC2046
Anis Kewa -v- Desmond Kami & The State (2010) N3899
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
Jacinta Albert v Joseph Aine (2019) N7772
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
Lagan v The State (1995) N1369
Lance Kolokol v The State (2009) N3571
Manase v Adnan (2002) N2408
Mano v Wagambie Junior (2023) N10410
Michael Jacob v Jim Namora & The State (2020) N8385
Peter Wanis v Fred Sikiot and The State (1995) N1350
Pole v The State (2008) N3500
Roth v Waronak (2011) N4452
Stanley Baine v Arnold Ulga & The State (2019) N8076
Solmein v Lim (2020) N8449
Thompson Munvi v Arnold Ulka Takai & The State (2018) N7100
Teine Molomb v The State (2005) N2861
Wamu Abari & Ors. v. The State & Ors (unreported National Court judgement dated 25th January, 2017
Waranumbo v Hyper Construction Ltd (2012) N4882
William Mel –v- Coleman Pakalia & Ors (2005) SC790
Willie v Kaupa (2016) N6533
Yalbees v Amaiu (2018) N7393
Yooken Paklin v The State (2001) N2212

Overseas Cases
Livingstone v Raywards Coal Co [1880] 5 App Cases 25

Statutes Cited
Constitution
Claims By and Against the State Act 1996
Judicial Proceedings (Interest on Debts and Damages) Act 2015

Counsel
J Siki, for the Plaintiffs
S Japson, for the Second Defendant
A Kajoka, for the Sixth Defendant

JUDGMENT

28^th September 2023

1. NAROKOBI J: This is a case which the plaintiffs claim negligence and breach of human rights. The question of liability was determined in the National Court in Yalbees v Amaiu (2018) N7393 (hereafter referred to as “Yalbees National Court”) on 2 August 2018. Before the matter went for assessment of damages, it was appealed to the Supreme Court in Amaiu v Yalbees (2020) SC2046 (Yalbees Supreme Court). The appeal was in the main dismissed, but certain aspects of it was successful. The Supreme Court ordered that the trial on assessment of damages continue in the National Court before a judge other than the trial judge in Yalbees National Court (Cannings J). This is how the matter is now before me.

Background

2. The facts of this case were found by Cannings J in Yalbees National Court when he determined the question of liability. The appeal against that decision did not overturn the findings of facts.
3. I repeat the facts from the head notes of Yalbees Supreme Court which is a neat summary, but I insert names of parties and omit certain parts which are not relevant to the issues now before me:
   • The Plaintiffs were 158 unauthorized but long-term occupants of government land in the National Capital District. Macata Enterprises Ltd was the registered proprietor of the State Lease over the land. In March 2013 Macata Enterprises Ltd entered the land, with the assistance of police, and evicted the occupiers, destroying houses and other structures to make way for development of the land. The Plaintiffs commenced proceedings against Macata Enterprises Ltd, a company, and Labi Amaiu, its managing director. Two causes of action were relied upon, namely the tort of negligence and breaches of human rights under the Constitution. The learned trial judge found that whilst the Plaintiffs were unauthorized squatters, they nonetheless held an equitable interest in the land by virtue of their long-term occupation of it, without active opposition by the registered proprietor. The learned trial judge further found that Macata Enterprises Ltd, as registered proprietor of the State Lease, owed a duty of care to the Plaintiffs, as equitable interest holders in the land. Furthermore, that Macata Enterprises Ltd breached that duty of care when it relied on a National Court order which appeared to but did not actually authorize the eviction. The learned trial judge also found that the manner in which the eviction was conducted constituted a breach of the Plaintiffs’ rights under ss. 36, 37, 41, 44 and 53 of the Constitution by Macata Enterprises Ltd, and other unnamed police officers for whom the State was vicariously liable. He dismissed all claims against Tom Amaiu and the named police officers and the Commissioner of Police. A trial on assessment of damages was ordered in respect of the claims against Macata Enterprises and the State.
4. Apart from what is restated here, which is based on the judgement of the court, reference to specific details will be made where required.

Findings of Yalbees National Court

5. The causes of action which will determine the damages and compensatory damages is set out in Yalbees National Court and the appeal in Yalbees Supreme Court. I will begin by setting out the main findings of Cannings J in Yalbees National Court. In the interest of time, the most effective to do this is to set out the headnotes in Yalbees National Court. I omit paragraph one as it is not relevant. The headnotes are as follows:
   • (2) Evidence of the first, third and fourth defendants as to the timing of the eviction exercise was more persuasive than the plaintiffs’ evidence on this issue. A finding of fact was made that the exercise took place from 7 to 11 March 2013. It was completed before the 14 March 2013 National Court injunction.
   • (3) The relationship between the registered proprietor (the second defendant) and the unauthorized occupiers (the plaintiffs) was sufficiently close to rise to a duty of care owed by the second defendant to the plaintiffs. That duty was breached by the negligent (if not deliberate) interpretation and publication of a National Court order of October 2012 which appeared to, but did not actually, authorize the eviction exercise. That breach of duty caused damage of a type not too remote. Therefore, a cause of action in negligence was made out against the second defendant. But not against the State or any of the Police defendants (third to sixth defendants) as they could not reasonably be expected to appreciate the nuances in interpretation of the October 2012 order.
   • (4) The plaintiffs had equitable interests in the land arising from their long-term occupation without active opposition from any lawful authority. They had to be given reasonable notice to leave. They were not given proper notice. The manner in which the eviction exercise was conducted involved a breach of human rights under Constitution, Sections 36 (freedom from inhuman treatment), 37 (protection of the law), 41 (proscribed acts), 44 (arbitrary search and entry) and 53 (unjust deprivation of property). Those who committed the breaches were the second defendant and un-identified members of the Police Force.
   • (5) As no claims had been proven against the first, third, fourth or fifth defendants, the proceedings against them were dismissed. The second defendant was liable in negligence and for breach of human rights. The sixth defendant, the State, was vicariously liable for the breaches of human rights committed by unidentified members of the Police Force who assisted the second defendant in conducting the eviction exercise.
   • (6) A trial on assessment of damages was ordered in respect of the claims against the second and sixth defendants.
6. Cannings J did not proceed to deliberate on the matter any further as the decision on liability was appealed to the Supreme Court.

Findings of Yalbees Supreme Court

7. I again set out the head notes of the appeal in the Supreme Court to enable me to focus on particular categories of damages and compensatory damages (for human rights breaches) I have to award. I only quote relevant paragraphs for purposes of this exercise on assessment of damages. Paragraphs one to eight are omitted:
   • Equitable Interest
   • (9) Squatters or those who occupy land over a long period of time, without authority, but also without objection, acquire an equitable interest in the land, analogous to a licence, entitling them to remain on the land for a reasonable period: Png Ready Mixed Concrete Pty Ltd v PNG & Ors [1981] PNGLR 396.
   • (10) Here, though the statement of claim did not expressly plead an equitable interest in the land, it was in sufficiently clear terms to define one of the issues for determination and put the Appellants on notice to meet it: Yakasa v Piso (2014) SC1330; Kuman v Digicel (PNG) Ltd (2013) SC1232 applied.
   • (11) On the evidence the registered proprietor was aware of the presence of the First Respondents for many years before any warnings were given or any attempts made to oppose their occupancy.
   • (12) There was no error on the part of the learned trial judge in finding that whilst the First Respondents were not authorised to occupy and develop the land, their long-term occupation and development of it without opposition by the registered proprietor, vested in them an equitable interest in the land and an entitlement to be given reasonable notice prior to eviction.
   • Negligence
   • (13) Whilst desirable, it is not essential that every element of every cause of action be expressly pleaded in a statement of claim. What is essential is that the statement of claim read as a whole discloses a cause of action in sufficiently clear terms to put the defendant on notice as to the claim that it has to meet: Yakasa v Piso (supra); Kuman v Digicel (PNG) Ltd (2013) SC1232.
   • (14) Though the duty of care element was not expressly pleaded, the statement of claim was drafted in sufficiently clear terms to put the Second Appellant on notice that it was required to meet a claim in negligence and the elements of that claim: Yakasa v Piso (supra); Kuman v Digicel (PNG) Ltd (2013) SC1232 applied.
   • (15) There was no error on the part of the learning trial judge finding that the Second Appellant breached its duty of care to the First Respondents to give reasonable notice when it relied upon a National Court order to conduct the eviction when it was, or should have been, aware that the order did not apply to the First Respondents, and in the absence of reasonable notice.
   • Constitutional Breaches
   • (16) The manner in which the eviction was conducted involved a breach of human rights under the Constitution, namely ss. 37(1) (protection of the law), 41 (proscribed acts), and 44 (arbitrary search and entry).
   • (17) The learned trial judge erred in finding that the manner in which the eviction was conducted constituted a breach of s. 36 (protection of the law) on the basis claimed by the First Respondents.
   • (18) The learned trial judge erred in finding that the Second Appellant compulsorily deprived the First Respondents of their property for the purposes of s. 53 (unjust deprivation of property) of the Constitution. The Second Appellant is neither the State nor an instrumentality of the State but a private company, which is not subject to s. 53 of the Constitution. Its action in seeking to enforce its right to possession may not be characterised as an act of expropriation: png Ready Mixed Concrete Ltd v PNG & Ors (supra); SC Ref No 3 of 1989 Re Forestry (Private Dealings) Act [1990] PNGLR 222; and Donigi v Base Resources Ltd [1992] PNGLR 110 applied.
8. The Supreme Court for the most part confirmed the findings of the court in Yalbees National Court except for the finding of the National Court with respect to breach of the Plaintiffs rights under ss 36 and 53 of the Constitution. The balance of the findings in Yalbees National Court were upheld by the Supreme Court.
9. Yalbees National Court found that only the second defendant was liable for negligence against the plaintiffs:
   • “...a cause of action in negligence was made out against the second defendant. But not against the State or any of the Police defendants (third to sixth defendants) as they could not reasonably be expected to appreciate the nuances in interpretation of the October 2012 order...”.
10. The following rights were confirmed to have been violated – ss 37, 41 and 44. The entity responsible for the breaches would be the second defendant and the State:
    • As no claims had been proven against the first, third, fourth or fifth defendants, the proceedings against them were dismissed. The second defendant was liable in negligence and for breach of human rights. The sixth defendant, the State, was vicariously liable for the breaches of human rights committed by unidentified members of the Police Force who assisted the second defendant in conducting the eviction exercise.
      

Issues

11. The issues that I must determine follows from what the court found against the Second Defendant and the Sixth Defendant as to the extent of their liability for negligence and for breach of human rights.
12. The damages that arise from the findings on negligence, which the Plaintiffs have pleaded in their statement of claim, are:
    • (a) Loss of properties;
    • (c) Special damages; and
    • (d) Distress, pain and suffering.
13. Any award I make for the above items will be paid by the Second Defendant as they relate to the claim for negligence.
14. The Second Defendant and the Sixth Defendant will pay 50% each for any award made for breach of Constitutional rights, and for exemplary damages. Again, this is based on my understanding from the findings of the National Court on the issue of liability for breach of human rights.
15. If interest is awarded on any judgment sum, the rate of interest to be paid by the Second Defendant will be different from the Sixth Defendant going by the rates stated in the Judicial Proceedings (Interest on Debts and Damages) Act 2015, especially s 4 in relation to the State.
16. I will address these issues and determine the amount of damages the Second Defendant and the Sixth Defendant has to pay to each Plaintiff under each category of damages.
    

The Evidence

17. This case began with 158 plaintiffs, but as the case continued many of the plaintiffs have not persisted and have not filed any evidence during the trial on assessment of damages. I accept the Defendants submissions that I should only award damages to the Plaintiffs that tendered evidence at the trial on assessment of damages. The quantum of damages depends on the available evidence. The Defendants have a right to challenge the Plaintiffs’ evidence by either objecting to the tender of any affidavit or cross-examination of the witnesses, for the court to assess the weight that should be given to that evidence. It would not be fair to the Defendants if the evidence tendered during trial on liability was also considered by the court without the Defendants being afforded an opportunity to indicate their position on the affidavits proposed to be tendered. This therefore means that those Plaintiffs that did not tender any affidavits during trial, will not have any damages awarded to them, as they have no evidence to support their claim.
    
18. A good number of the deponents were cross-examined, but the questions were repetitive and focused much on the issue of liability, so Counsel of the Second Defendant allowed the tender of the affidavits, and reserved his right to comment on the weight to be given to the affidavits.
19. Wilson Kuyoko, one of the Plaintiffs filed an additional affidavit on 24 September 2021 which contains the valuation report of FK and Associates Consultants. Frank Kumie, its managing director says that they have vast experience in valuation and have a pool of highly skilled valuers. One of his employed valuers is Engelbert Turia, who has a Diploma in Valuation from the Papua New Guinea University of Technology, and is a licensed certified valuer capable of doing urban and rural valuation.
20. The valuation report provides a value of the items that were destroyed by each of the Plaintiffs. In Frank Kumie’s affidavit filed 8 November 2021 he states that he and his two other employees, Mr Emmanuel Kambu and Mr Engelbert Turia on 25 March 2013 attended the site of the place described as State Lease portion 1564, Volume 23, Folio 89, Granville, Port Moresby, National Capital District, inspected the subject land, conducted interview with the Plaintiffs and their lead representatives, collected raw data and made an analysis on the Plaintiffs’ loss of their properties and environment. Engelbert Turia confirms the evidence of Frank Kumie.
21. The Second Defendant relied on the two affidavits of Tom Amaiu, its Managing Director. The affidavits were filed on 26 April 2016 and 29 March 2017. The Sixth Defendant through Perou N’Dranou relied on affidavit filed 9 February 2016. Essentially the affidavits address the issue of liability. But Tom Amaiu makes reference to “makeshifts and tents.” This is in stark contrast to the permanent structures the Plaintiffs say were bulldozed in the eviction exercise. This signals to me that I have to be cautious in considering the evidence of the Plaintiffs.
    

Submissions

22. The Plaintiffs submits that they should be entitled to the following:
    • 1. In summary, the Plaintiffs should be awarded damages as follows;
      

(a) Loss of properties -	K15, 000, 000. 00
(b) Breach of constitutional rights -	K316, 000.00
(c) Special damages -	K61, 000.00
(d) Distress, pain & suffering -	K948, 000.00
(e) Exemplary damages -	K50, 000.00
(f) Interest (at 2% & 8%, respectively)
(g) Cost

Total amount payable = K16, 375, 000.00 (exclusive of interest & cost)

23. The largest component is for loss of properties. The Plaintiff says that initially when the case was filed, and at trial all the Plaintiffs tendered affidavits. At trial on assessment of damages, not all of them tendered affidavits. The table below is the amount each plaintiff claims:

No.	Plaintiff	Monetary Value (K)
1.	Wilson Kuyoko	751, 780.00
2.	Mondopa Hewali	66, 815.00
3.	Komba Londari	65, 080.00
4.	Poko Sokai	50, 914.00
5.	Evesen Efore	62, 295.00
6.	Sape Makawa	64, 395.00
7.	Pastor Sue	120, 010.00
8.	Andake Erepe	67, 795.00
9.	Pipi Hayapa	69, 850.00
10.	Nancy Lupale	59, 950.00
11.	Alice Manu	64, 815.00
12.	Elsie Mama	63, 890.00
13.	Evelyn Tangipi	56, 619.00
14.	Margret Felix	213, 065.00
15.	Lupara Wara	58, 020.00
16.	Joseph Hanape	56, 820.00
17.	Kelo Kepawi	57, 405.00
18.	Patrick Pawa	62, 860.00
19.	Dokas Yangoma	60, 715.00
20.	Lemon Kaka	55, 140.00
21.	Ronald Rowa	56, 021.00
22.	Willy Pama	54, 300.00
23.	Patrick Koalo	66, 750.00
24.	Jacky Alo	54, 012.00
25.	Tazi Benane	53, 298.00
26.	Kandata Asa	158, 635.00
27.	Thomas Aluya	53, 399.00
28.	Jerry Etopa	53, 411.00
29.	Sawi Kewa	62, 070.00
30.	Songe Ame	52, 947.00
31.	Pangopi Hewa	63, 750.00
32.	Nokai Kuyema	52, 141.00
33.	Esther Albert	52, 446.00
34.	Esasy Kopi	52, 523.00
35.	Michael Koi	52, 684.00
36.	Hayapa Ole	63, 850.00
37.	Mary Pere	54, 430.00
38.	Elu Male	52, 353.00
39.	Joshua Kandata	52, 180.00
40.	Melo Manman	53, 981.00
41.	Thomas Tigi	60, 869.00
42.	Joseph Hongai	52, 930.00
43.	Lucy Erepe	53, 504.00
44.	David Angai	53, 144.00
45.	Toko Peyape	54, 270.00
46.	Cathy Abulu	54, 767.00
47.	Simon Kopal	110, 245.00
48.	James Asa	52, 792.00
49.	Yapson J. Micah	53, 825.00
50.	Wasa Luso	153, 417.00
51.	Thomas Yalbees	668, 630.00
52.	Smith Thanda	687, 900.00
53.	Michael Kandakasi	158, 839.00
54.	Glenes Daniel	53, 430.00
55.	John Bee	55, 495.00
56.	Kingsly Tatabe	53, 743.00
57.	Winisen Luther	54, 032.00
58.	Rose Yakuman	54, 771.00
59.	Anton Bomai	69, 615.00
60.	George Kubul	502, 760.00
61.	Isaiah Waima	64, 318.00
62.	Fox Paki	61, 735.00
63.	Abraham Mandika	61, 285.00
64.	Waksi Kaka	160, 885.00
65.	Miriam Koni Thomas	64, 585.00
66.	Nena Bre	65, 555.00
67.	Kemo Kagu	62, 568.00
68.	Steven Tai	65, 268.00
69.	Willie Magasim	65, 418.00
70.	Andrew Roya	65, 848.00
71.	John Philima	65, 962.00
72.	Philip Mel	68, 362.00
73.	Judah Kama	70, 862.00
74.	Ezekiel Martin	66, 630.00
75.	Jayson Sau	66, 953.00
76.	David Bona	53, 076.00
77.	Christina Junior	63, 503.00
78.	Waki Andrias	56, 253.00
79.	Peter Nokki	54, 838.00
80.	Chris Wemin	63, 503.00
81.	Rachael Daniel	65, 485.00
82.	Pais Ivoro	69, 509.00
83.	Robert Suli	56, 743.00
84.	Philip Kuria	60, 825.00
85.	Joana Enoko	64, 275.00
86.	Peter Lakale	58, 693.00
87.	Buxon Yawala	61, 693.00
88.	Benny Kony	61, 093.00
89.	Beraki Tatabe	67, 472.00
90.	Betty Yokona	66, 722.00
91.	Tolo Kandend	62, 372.00
92.	Melisa Tony	61, 722.00
93.	Council Pepsi Keke	161, 680.00
94.	Ruth Leyap	71, 150.00
95.	Tony Yanis	62, 200.00
96.	Lucy Mango	68, 180.00
97.	Issac Kaupa	62, 382.00
98.	Nicky Kobi	64, 682.00
99.	Margret Peter	62, 032.00
100.	Jonathan Waksi Kaka	68, 050.00
101.	Wakion Junior	58, 443.00
102.	Emily Posou	62, 018.00
103.	Peter Blacky	60, 861.00
104.	Wilson Traf	58, 643.00
105.	John Kuri Kaupa	57, 419.00
106.	Waime Kuruku	57, 619.00
107.	Wati Irali	59, 582.00
108.	Taron Magape	163, 012.00
109.	Topi Turuku	63, 805.00
110.	Rocky Oki	63, 043.00
111.	Philip Adama	63, 708.00
112.	Nety Agera	61, 898.00
113.	Miki Epikana	63, 231.00
114.	Michael Kepa	68, 671.00
115.	Lucy Kapi	62, 132.00
116.	Backy Essie	62, 218.00
117.	Albert Tokai	65, 742.00
118.	Graham Wambi	63, 610.00
119.	Ben Lunga	2, 114, 950.00
120.	Catherine Kii	51, 615.00
121.	Chris Cathy Yalo	62, 500.00
122.	Helen Peter	58, 800.00
123.	Jenny Yange	51, 690.00
124.	Clark Myak	17, 550.00
125.	John Lipu	52, 312.00
126.	Kuriam Peraki	51, 301.00
127.	Michael Kalandi	52, 335.00
128.	Mas Mayer	52, 253.00
129.	Mikel Aiyoko	51, 972.00
130.	Rex Kurakali	51, 178.00
131.	Douglas Kulin	159, 178.00
132.	Samuel Kaekin	156, 487.00
133.	Wasembo Leyap	51, 232.00
134.	Amound Nos	52, 050.00
135.	Billy Naowen	52, 258.00
136.	Gary Yogomo	52, 048.00
137.	Jim Map	57, 331.00
138.	Kindi Naowen	51, 009.00
139.	Michael James	57, 009.00
140.	Johnson Waksi Kaka	63, 890.00
141.	Palus Yaki	62, 044.00
142.	Peter Lakali	52, 044.00
143.	Poke Thomas	51, 796.00
144.	Ponde Isingi	55, 316.00
145.	Roberth Napi	51, 424.00
146.	Ruben John	58, 258.00
147.	Ipi Sakias	51, 354.00
148.	Salipen Gabriel	51, 604.00
149.	San Leo	51, 583.00
150.	Wanpis Leo	51, 183.00
151.	Bonny Kamri	51, 268.00
152.	Koson Kunalus	61, 050.00
153.	Johnny Tuli	111, 268.00
154.	Clerk Sape	51, 268.00
155.	Pauline Oki	107, 009.00
156.	Ben Hela Mindiria	63, 020.00
157.	Samson Maima	66, 315.00
158.	Joel Kopi	52, 148.00
Total loss		15, 000, 000

24. The list of 158 Plaintiffs and the monetary value of their properties lost was as contained in a Valuation Report. The Plaintiffs refer to Schedule 3 of the Amended Statement of Claim and the Valuation Report for full details/description of the items lost and their quantities.
    
25. On the issue of “evidence and value of property loss” the Plaintiffs submit that the court should have regard to what the National Court (Neill J) said in a very recent case of WS No. 16 of 2005; Wamu Abari & Ors. v. The State & Ors (unreported National Court judgment dated 25th January, 2017):
    
    • i. “It is settled law that the purpose of an award of damages is to put the innocent party in the same position, as far as possible they would have been but for the wrongful act.
    • ii. In regard to burden of proof, the Court also relied on the settled law that it is the Plaintiff to provide evidence of his claim and to prove his claim on the balance of probabilities.
    • iii. However, where a Plaintiff is unable to provide all the evidence required but none-the-less does provide such evidence as to give rise to a reasonable probability of loss, the Court will consider making an award of damages.”
26. In the present case, the Plaintiffs say they have engaged the services of an independent certified Valuer, who assessed or valued their properties lost. (Refer to the Affidavit of Frank Kumie sworn and filed on 08th November, 2021 (Court doc. #254) and the Affidavit of Engelbert Turia sworn on 02nd December, 2021 and filed on 07th December, 2021 (Court doc. #262)).
    
27. They therefore submit that the Court must award each Plaintiff the fixed amount as assessed by the independent Valuers per the Valuation Report. K15, 000, 000.000 should be awarded to the Plaintiffs under this heading.
28. The Second Defendant’s strongest submission is that the Plaintiffs were not deprived off any right over any property because, the structures they put up were illegal. They did not have any right to do so at the first place.
29. The Second Defendant then submits that the Plaintiffs have all failed to prove their damages and therefore they are not entitled to any claim and relies on the case of William Mel –v- Coleman Pakalia & Ors (2005) SC790. It says this is a claim for people in Port Moresby city unlike police raids in villages. The people have access to mobile phones and cameras and also easy access to Hardware Stores, etc from which they bought materials to build houses etc. There was no evidence at all provided by the Plaintiffs proving their claim to show and demonstrate to the Court the type of properties they alleged to have had by way of photographic evidences, receipts from hardwares, shops, and bank statements.
30. Alternatively, it submits that if the Court finds that they at least suffered damages, each Plaintiff be awarded K5,000.00 for those who claim less than K100,000.00 and K10,000.00 for those who claim more than K100,000.00 and K15,000.00 for those who claim in excess of a Million Kina.
31. There is no evidence of any special damages and nil award be made in this head of damages.
32. The second defendant then submits that the Plaintiffs are illegal settlers, they were not supposed to be there at the first place so that only K1,500.00 should be awarded to each Plaintiff.
33. For loss of properties, based on the formula that the second defendant submits that each Plaintiff be awarded K5,000.00 for those who claim less than K100,000.00 and K10,000.00 for those who claim more than K100,000.00 and K15,000.00 for those who claim in excess of a Million Kina, would result in the following results tabulated hereunder.

No.	Plaintiff	Monetary Value (K)
1	Wilson Kuyoko	751,780.00	10,000.00
2	Mondopa Hewali	66,815.00	5,000.00
3	Komba Londari	65,080.00	5,000.00
4	Poko Sokai	50,914.00	5,000.00
5	Pastor Sue	120,010.00	10,000.00
6	Andake Erepe	67,795.00	5,000.00
7	Alice Manu	64,815.00	5,000.00
8	Elsie Mama	63,890.00	5,000.00
9	Margret Felix	231,065.00	10,000.00
10	Joseph Hanape	56,820.00	5,000.00
11	Patrick Pawa	62,860.00	5,000.00
12	Dokas Yangoma	60,715.00	5,000.00
13	Lemon Kaka	55,140.00	5,000.00
14	Ronald Rowa	56,021.00	5,000.00
15	Willy Pama	54,300.00	5,000.00
16	Patrick Koalo	66,750.00	5,000.00
17	Jacky Alo	54,012.00	5,000.00
18	Tazi Benane	53,298.00	5,000.00
19	Thomas Aluya	53,399.00	5,000.00
20	Jerry Etopa	53,411.00	5,000.00
21	Songe Ame	52,947.00	5,000.00
22	Pangopi Hewa	63,750.00	5,000.00
23	Nokai Kuyema	52,141.00	5,000.00
24	Esther Albert	52,446.00	5,000.00
25	Esasy Kopi	52,523.00	5,000.00
26	Michael Koi	52,684.00	5,000.00
27	Mary Pere	54,430.00	5,000.00
28	Elu Male	52,353.00	5,000.00
29	Cathy Abulu	54,767.00	5,000.00
30	Wasa Luso	153,417.00	10,000.00
31	Thomas Yalbees	668,630.00	10,000.00
32	Smith Thanda	687,900.00	10,000.00
33	Glenes Daniel	53,430.00	5,000.00
34	John Bee	55,495.00	5,000.00
35	Rose Yakuman	54,771.00	5,000.00
36	Waksi Kaka	160,885.00	10,000.00
37	Nena Bre	65,555.00	5,000.00
38	Steven Tae	65,268.00	5,000.00
39	John Pilima	65,962.00	5,000.00
40	Philip Mel	68,362.00	5,000.00
41	Judah Kama	70,862.00	5,000.00
42	Ezekiel Martin	66,630.00	5,000.00
43	David Bona	53,076.00	5,000.00
44	Pais Ivoro	69,509.00	5,000.00
45	Peter Lakale	58,693.00	5,000.00
46	Benny Kony	61,093.00	5,000.00
47	Beraki Tatabe	67,472.00	5,000.00
48	Betty Yakona	66,722.00	5,000.00
49	Tolo Kendend	62,372.00	5,000.00
50	Melisa Tony	61,722.00	5,000.00
51	Council Tony Pepsi	61,680.00	5,000.00
52	Tony Yanis	62,200.00	5,000.00
53	Issac Kaupa	62,382.00	5,000.00
54	Wakion Junior	58,443.00	5,000.00
55	Peter Blacky	60,861.00	5,000.00
56	Wilson Traf	58,643.00	5,000.00
57	John Kuri Kaupa	57,419.00	5,000.00
58	Taron Mangape	163,012.00	10,000.00
59	Topi Turuku	63,805.00	5,000.00
60	Nety Agera	61,898.00	5,000.00
61	Lucy Kapi	62,132.00	5,000.00
62	Backy Essie	62,218.00	5,000.00
63	Albert Tokai	65,742.00	5,000.00
64	Ben Lunga	2,114,950.00	15,000.00
65	John Lipu	52,312.00	5,000.00
66	Anound Nos	52,050.00	5,000.00
67	Billy Naowen	52,258.00	5,000.00
68	Gary Yogomo	52,048.00	5,000.00
69	Jim Map	57,331.00	5,000.00
70	Kindi Naowen	51,009.00	5,000.00
71	Michael James	57,009.00	5,000.00
72	Palus Yaki	62,044.00	5,000.00
73	Peter Lakali	52,044.00	5,000.00
74	Poke Thomas	51,796.00	5,000.00
75	Roberth Napi	51,424.00	5,000.00
76	Ruben John	58,258.00	5,000.00
77	Ipi Sakias	51,354.00	5,000.00
78	Salipen Gabriel	51,604.00	5,000.00
79	San Leo	51,583.00	5,000.00
80	Wanpis Leo	51,183.00	5,000.00
81	Boni Kamri	51,268.00	5,000.00
82	Johnny Tuli	111,268.00	10,000.00
83	Samson Maima	66,315.00	5,000.00
TOTAL			K470,000.00

34. The Second Defendant submits that it is only those that tendered affidavits during trial on assessment of damages that should be entitled to be considered for an award of damages.

Principles on Assessment of Damages

35. The purpose of damages is to place an aggrieved party in the place they would have been if the wrongful acts or omissions had not been done. The English case of Livingstone v Raywards Coal Co [1880] 5 App Cases 25 which propounded this proposition was cited with approval in a number of Papua New Guinea cases such as Waranumbo v Hyper Construction Ltd (2012) N4882 and Roth v Waronak (2011) N4452.
36. I have also had regard to the cases of William Mel v Coleman Pakalia and Others (2005) SC709 and Yooken Paklin v The State (2001) N2212. Essentially these cases list accepted principles on the methodology of assessment of damages the courts employ in this jurisdiction, that is that the plaintiff has the onus of proving his or her damages on evidence, which should preferably be corroborated by independent sources.
37. Another important case that I adopt is that of Mangope Paraia v The State (1995) N1343, that is that where damages cannot be assessed with certainty, that does not relieve the wrongdoer of the necessity of paying damages. Where there is no precise evidence the court must do the best, it can. Mangope Paraia v The State has been cited with approval by the National Court in cases such as Lagan v The State (1995) N1369, a police raid case.
38. All in all, the relevant principles on assessment of damages were summarized by Cannings J in Willie v Kaupa (2016) N6533 where he said at paragraph 13:
    • 13. In assessing damages I have had regard to the following principles:
    • The plaintiffs have the onus of proving their losses on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it (Yooken Paklin v The State (2001) N2212).
    • Corroboration of a claim is usually required and the corroboration must come from an independent source (Albert Baine v The State (1995) N1335; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331).
    • The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim (Peter Wanis v Fred Sikiot and The State (1995) N1350).
    • The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence (Yange Lagan v The State (1995) N1369).
    • The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available, the court expects to have it. However, where it is not, the court must do the best it can (Jonathan Mangope Paraia v The State (1995) N1343).
    • The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims (Kolaip Palapi v Sergeant Poko (2001) N2274).
39. These are the principles I consider and apply in this case.

Principles of Assessment of Compensatory Damages for Breach of Human Rights

40. The starting point when determining compensation for breach of human rights and breaches is s 58 of the Constitution:
    • 58. Compensation.
    • (1) This section is in addition to, and not in derogation of, Section 57 (enforcement of guaranteed rights and freedoms).
    • (2) A person whose rights or freedoms declared or protected by this Division are infringed (including any infringement caused by a derogation of the restrictions specified in Part X.5 (internment)) on the use of emergency powers in relation to internment is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.
    • (3) Subject to Subsections (4) and (5), damages may be a awarded against any person who committed, or was responsible for, the infringement.
    • (4) Where the infringement was committed by a governmental body, damages may be awarded either—
      • (a) subject to Subsection (5), against a person referred to in Subsection (3); or
      • (b) against the governmental body to which any such person was responsible,
    • or against both, in which last case the court may apportion the damages between them.
    • (5) Damages shall not be awarded against a person who was responsible to a governmental body in respect of the action giving rise to the infringement if—
      • (a) the action was an action made unlawful only by Section 41(1) (proscribed acts); and
      • (b) the action taken was genuinely believed by that person to be required by law,
    • but the burden of proof of the belief referred to in paragraph (b) is on the party alleging it. (Emphasis added)
41. Although s 58 is entitled, “Compensation,” ss 58(2) and 58(3) refers to exemplary damages and damages respectively. For ease of reference, I shall refer to it as “compensation.” To distinguish it from damages awarded under common law cause of actions such as negligence.
42. The National Court in Lance Kolokol v The State (2009) N3571 assessed damages for each separate occasion of a breach of human rights. This is for the reason that each occasion is capable of supporting a separate cause of action. The other approach is to take a global sum approach (see Teine Molomb v The State (2005) N2861). From my assessment of case authorities, the National Court has a discretion to decide which approach it should take. For this case, I have decided to adopt the approach in Lance Kolokol v The State for the reason that I stated in Solmein v Lim (2020) N8449, that is that such an approach will highlight the importance and value of human rights which have the force of constitutional guarantee.

Damages and Compensation in Police Raid Cases

43. Many cases involving destruction of properties in police raid and or in eviction cases have ended up in court. What I have tried to do is to list some of them and identify the common approaches the court’s have taken in dealing with them. I do this because this is a case involving destruction of property by the registered proprietor of the property together with the police.
44. Mangope Paraia v The State, referred to above, is a police raid case. I repeat again, that, that case stands for the proposition that where a wrong has been done, the victim is entitled to some damages, and if the evidence is not adequate, the court must do the best it can.
45. Gavara-Nanu J in Manase v Adnan (2002) N2408 dealt with a case where the plaintiff was claiming damages for the destruction of his village house in a police raid case. The court said:
    • In the circumstances, I consider that at the highest, the reasonable value of the trade store at the time it was constructed would have been about K 12,000.00. After five years, the store would have substantially depreciated. Then there was very high possibility of poor workmanship. This is highly likely because the trade store was built in the village, and there is no evidence that the carpenter who built the trade store was qualified and had used proper tools. These features, differ significantly from those in Jonathan Mangope Paraia -v- Jacob Yansuan & 3 Ors (supra). In that case, the carpenter was able to give evidence about the workmanship on the house he built, the types of tools he used and his qualifications as a carpenter. I have no doubt that, those features had positive bearing on the trial judge’s mind in awarding K 18,000.00 for the house which was destroyed. The amount claimed there was K40,000.00 and the house was a semi permanent L40 type.
      
46. There the court thought the location of the building and the need for evidence from whoever built the building was necessary.
47. In Anis Kewa -v- Desmond Kami & The State (2010) N3899, a police raid case, Makhail J said at pp 7 & 8:
    • In terms of the value of destroyed items, whilst there are no receipts of payments to verify that the items cost K22,398.81 in total, I am nonetheless prepared to award this amount for two reasons. First, the amount is reasonable when each item is considered against the average purchase price of the same item at shops around town these days. For example, the video screen and the chair like the ones shown in the photographs (exhibits "P1", "P2", "P4" & "P5") would cost about K1,500.00 and K50.00 respectively.
    • Secondly, when I compare the value of each item in this case with past cases of John Tuink Salamon & Ors -v- George Wauglo & The State [1994] PNGLR 265; (1994) N1272; Peter Wanis -v- Fred Sikiot & The State (1994) N1350; Yange Langa & Ors -v- The State (1995) N1369 and Wama Kints & Ors -v- Senior Constable Pius Nukundi & The State (2001) N2113, the Court in those cases have made similar awards for similar items and so for purposes of consistency, I have decided to apply similar value for each item in this case. This comes up to K22,398.81. For these reasons, I award K22,398.81 as general damages."
48. What the court did in that case was firstly to consider whether the amount claimed is reasonable from common knowledge of the price of items in town and secondly, to see if the value of the items accord with amounts awarded by a court for similar items.
49. In Pole v The State (2008) N3500 the court said that evidence given by the Plaintiffs themselves can be regarded as self-serving.
50. The final case I refer to is the case of Willie v Kaupa. In that case the court took the global sum approach, but discussed what the court did in police raid cases where the evidence is deficient:
    • 15. Each case must be judged on its merits and the quality of evidence before the court. I have addressed these sorts of issues in a number of previous cases involving large numbers of plaintiffs.
    • 16. In Eton Pakui v The State (2006) N2977, a case involving an unlawful police raid of Tulipato village in Enga Province, I discounted the 16 claims by 90%.
    • 17. In Joe Tipaiza v James Yali (2008) N3472, the 220 plaintiffs claimed property losses of K3.9 million following an unlawful squatter eviction exercise by police and the provincial government in Madang. I discounted each of the claims by 50% in view of deficiencies in the evidence.
    • 18. In Anuta Jobou v Alfred Kumasi and The State (2012) N4607, a case involving an unlawful police raid of Bom village in the Rai Coast district of Madang Province in which houses were burned down and property including livestock destroyed, the claims by the 155 plaintiffs were discounted by 50%.
    • 19. In Francis Fuliva v Inspector Tony Wagambie Junior (2013) N5221, 1,281 plaintiffs, illegal settlers on Government land in Madang, succeeded at a trial in establishing a cause of action in breach of the agreement governing their eviction. A separate trial was conducted on assessment of damages. The plaintiffs claimed two categories of damages: (1) general damages for breach of agreement and pain and suffering, K5,000.00 each, a sum of K6,405,000.00; and (2) specific damages for destruction of property, different amounts being sought by each plaintiff, a sum of K13,585,763.81. It was held that there was no evidence in support of the plaintiffs’ claim for general damages and nothing was awarded. As for the claims for property damage the evidence was insufficient to fully support the claims, which suffered from a lack of corroboration, but the plaintiffs proved that they incurred some losses and destruction of their properties. Each claim was discounted by 90% to arrive at an award of damages for property losses.
    • 20. In Justin Bau v Paul Karl (2010) N4123, 61 plaintiffs were the victims of a police raid at Muledami settlement in the hilltops around Kimbe, West New Britain. In an assessment of damages following entry of default judgment against the State I concluded that the claims were exaggerated and because of the lack of precision in the amounts being claimed by the plaintiffs I awarded them each a flat figure of K10,000.00, rather than discounting each claim.
    • 21. It is the approach in Bau that I have decided to apply in this case. As for the appropriate global sum, I will adopt the amount proposed by the State: K5,000.00. That is a reasonable, proper and fair amount in all the circumstances. The total amount of damages awarded is K5,000.00 x 1,687 plaintiffs = K8,435,000.00.
51. The final case I have had regard to is Mano v Wagambie Junior (2023) N10410. The 54 plaintiffs were living at the Bilia Point settlement, Portion 511, in Madang when the police, under the control of the first defendant, Inspector Tony Wagambie Junior, entered the settlement without sufficient notice being given to the settlers to vacate the settlement. The police went on a rampage, destroying homes and other properties. In that case, a valuation report was provided, but the court was skeptical of the report as it was unsure as to how the report was prepared. The court applied 90% discount to the value of the properties destroyed because the evidence was not corroborated.
52. I have considered all these cases in my determination of the quantum of damages due to the Plaintiffs.

Considerations

53. The Plaintiffs have established a cause of action in negligence and for breach of human rights, so I start from the premise that they should be entitled to damages. The question is how much. That question is answered by having regard to the discussion above and the various case authorities referred to and of course consideration of the evidence.
54. The strength of the Plaintiffs’ case is that what they are claiming is pleaded in their statement of claim. There is also evidence to support their claim from the evidence they tendered, supported by the valuation report. The question is what weight I should give to the affidavits of the Plaintiffs?
55. The largest claim is for loss of houses. Whilst the affidavit lists what each Plaintiff has lost in the eviction exercise, what I see lacking is additional information to verify their claim. The evidence should state the occupation of the plaintiff, when the houses were built, what it cost them to build, and the type of materials used to build the house. This will enable the court to get an appreciation of the income of the Plaintiff and his or her ability to expend the kind of money they claimed that was used to construct such properties. This is all the more important given that this was a urban-settlement setting, and it is safe to say that the houses constructed usually do not have building board approval and may or may not be permanent high covenant houses.
56. To confirm the value of the house, the evidence could have come from the carpenter who built the house. I thought that the valuation report should have had more photographs and provided the size of the area the houses were located in. This is not to say that I do not take into account the photographs that are contained in the valuation report and the affidavits. Tom Amaiu refers to the fact that when the eviction exercise took place, most of the settlers had dismantled their dwelling and left the place. Thomas Yalbees for example says that he owns several rental properties. To verify his claim, he could have provided income tax returns and or his bank statement showing the money he makes from owning rental accommodation.
57. Most, if not all the affidavits tendered by the Plaintiffs focused much attention on the question of liability, and simply listed the items they lost and how much it cost. It would have been preferrable to also indicate where and when they bought it, especially for expensive items. As it is, it appears quite arbitrary in the choice of value for each item. I would have liked to see much more detail in the methodology of the valuation report.
58. I also note that what the valuation report provided is the same value as what each of the plaintiffs provided in their affidavits. It would have made more sense for the Plaintiffs to provide information on when properties were built or acquired, its present condition, and then the valuer can value them, taking into account any depreciation of the items. In that way, it would provide a more accurate valuation of the items that were destroyed. The sense I get from the valuation report is that the valuer is repeating verbatim what the Plaintiffs providing to them.
59. Considering the fact that the evidence is not corroborated, although the amount claimed is pleaded, and a valuation report is provided, I place little weight on it, as the items valued were based on anecdotal evidence. I will allow each Plaintiff that tendered evidence during trial on assessment of damages the amount claimed in the valuation report as both counsels used this as the basis of their submissions, but discount each amount by 90% following the approach of Cannings J in Francis Fuliva v Inspector Tony Wagambie Junior and Mano v Wagambie Junior. This is for the reason that the evidence is not corroborated.
60. I agreed to some extent with the Second Defendants submissions. Those Plaintiffs that claim in excess of K500,000.00 will have K500,000 as the maximum amount I will use to apply the 90% discount. Well renovated houses around Port Moresby takes less than K500,000.00 to build and renovate. It will be less when people use their own labour to construct these houses. I would require additional corroborating evidence for me to allow anything over K500,000.00, which I do not have. This will mean that I apply 90% discount to K500,000.00 for Wilson Kuyoko, Smith Thanda, Thomas Yalbees, and Ben Lunga.
61. As for the breach of human rights, the following rights were found to have been breached - s. 37(1) (protection of the law), s 41 (proscribed acts), and s 44 (arbitrary search and entry). In Mano v Wagambie Junior, the following rights were found to have been breached - ss 36, 44 and 53 of the Constitution. The court awarded K15,000 to each Plaintiff. The circumstances of the case are similar. In both cases three rights were found to have been breached. I award K15,000 to each plaintiff for breach of human rights.
62. The Plaintiffs claim exemplary damages. Due to the short notice given to vacate the property, I am satisfied that the violation of human rights was serious and continuous to meet the tests stipulated in s 12 of the Claims By and Against the State Act 1996. For parity with cases of similar circumstances, I have regard to the case of Mano v Wagambie Junior and I award K5,000 to each Plaintiff for exemplary damages.
63. No award for special damages is made although the Plaintiffs claim K61, 000.00 because no evidence has been provided to support the claim.
64. The Plaintiffs claim damages for distress, pain and suffering. They make a total claim of K948, 000.00. The court has found that they were forcefully removed from places they were occupying without proper notice given to them. This was a distressing situation they endured. In Mano v Wagambie Junior, which I have already considered to be similar to this case, the court referred to previous similar cases and awarded K10,000 for distress, pain and suffering. I follow these cases and award K10,000 to each Plaintiff. In my view, the distress, pain and suffering was as a result of the negligence of the Second Defendant and it will consequently have to meet this category of damages.

Interest

65. The Plaintiffs claim interest. I have regard to the Judicial Proceedings (Interest on Debts and Damages) Act. I see no impediment to awarding interest as a matter of course and the Defendants have not put up any serious objections. But I award interest at 8% against the Second Defendant from the date liability was determined, and for the State, interest is awarded against them at 2% for the same period as the Second Defendant. To award interest for a longer period may have a crushing effect on the Defendants, when exemplary damages has already been awarded to cater for it. Liability was entered on 2 August 2018. The period interest would be applied would be 2 August 2018 to 28 September 2023 - five years, two months (rounded off to the nearest month).
66. The formula I will use will be the total judgment sum multiplied by the interest rate to get the yearly rate, and then divide that figure by 12 months to get the monthly rate. I will then multiply the monthly rate by 62 months. The two figures will be added to arrive at the total interest rate. For example, for Wilson Kuyoko, I multiply K70,000.00 by 8% to get K5,600.00 for the yearly rate. The K5,600.00 is divided by 12 to get the monthly rate of K466.67. The total interest will be K466.67 x62 = K28,933.33. Total judgment sum for Wilson Kuyoko is therefore K70,000.00+K28,933.33= K98,933.33.
67. The amount each Plaintiff will be paid by the Second Defendant this is tabulated hereunder.
    

Table 1 – Damages to be paid by the Second Defendant to each Plaintiff.

No.	Plaintiff	Loss of Properties ( red. by 90%) (K)	Distress, pain and suffering (K)	Breach of Rights (50% of award) (K)	Exemplary damages (50% of award) (K)	Total judgment sum exclusive of 8% interest (K)	Total Judgment sum inclusive of 8% interest
1	Wilson Kuyoko	50,000.00	10,000.00	7,500.00	2,500.00	70,000.00	98,933.33
2	Mondopa Hewali	6,681.50	10,000.00	7,500.00	2,500.00	26,681.50	37,709.85
3	Komba Londari	6,508.00	10,000.00	7,500.00	2,500.00	26,508.00	37,464.64
4	Poko Sokai	5,091.40	10,000.00	7,500.00	2,500.00	25,091.40	35,462.51
5	Pastor Sue	12,001.00	10,000.00	7,500.00	2,500.00	32,001.00	45,228.08
6	Andake Erepe	6,779.50	10,000.00	7,500.00	2,500.00	26,779.50	37,848.36
7	Alice Manu	6,481.50	10,000.00	7,500.00	2,500.00	26,481.50	37,427.17
8	Elsie Mama	6,389.00	10,000.00	7,500.00	2,500.00	26,389.00	37,296.45
9	Margret Felix	23,106.50	10,000.00	7,500.00	2,500.00	43,106.50	60,923.85
10	Joseph Hanape	5,682.00	10,000.00	7,500.00	2,500.00	25,682.00	36,297.23
11	Patrick Pawa	6,286.00	10,000.00	7,500.00	2,500.00	26,286.00	37,150.88
12	Dokas Yangoma	6,071.50	10,000.00	7,500.00	2,500.00	26,071.50	36,847.72
13	Lemon Kaka	5,514.00	10,000.00	7,500.00	2,500.00	25,514.00	36,059.79
14	Ronald Rowa	5,602.10	10,000.00	7,500.00	2,500.00	25,602.10	36,184.30
15	Willy Pama	5,430.00	10,000.00	7,500.00	2,500.00	25,430.00	35,941.07
16	Patrick Koalo	6,675.00	10,000.00	7,500.00	2,500.00	26,675.00	37,700.67
17	Jacky Alo	5,401.20	10,000.00	7,500.00	2,500.00	25,401.20	35,900.36
18	Tazi Benane	5,329.80	10,000.00	7,500.00	2,500.00	25,329.80	35,799.45
19	Thomas Aluya	5,339.90	10,000.00	7,500.00	2,500.00	25,339.90	35,813.73
20	Jerry Etopa	5,341.10	10,000.00	7,500.00	2,500.00	25,341.10	35,815.42
21	Songe Ame	5,294.70	10,000.00	7,500.00	2,500.00	25,294.70	35,749.84
22	Pangopi Hewa	6,375.00	10,000.00	7,500.00	2,500.00	26,375.00	37,276.67
23	Nokai Kuyema	5,214.10	10,000.00	7,500.00	2,500.00	25,214.10	35,635.93
24	Esther Albert	5,244.60	10,000.00	7,500.00	2,500.00	25,244.60	35,679.03
25	Esasy Kopi	5,252.30	10,000.00	7,500.00	2,500.00	25,252.30	35,689.92
26	Michael Koi	5,268.40	10,000.00	7,500.00	2,500.00	25,268.40	35,712.67
27	Mary Pere	5,443.00	10,000.00	7,500.00	2,500.00	25,443.00	35,959.44
28	Elu Male	5,235.30	10,000.00	7,500.00	2,500.00	25,235.30	35,665.89
29	Cathy Abulu	5,476.70	10,000.00	7,500.00	2,500.00	25,476.70	36,007.07
30	Wasa Luso	15,341.70	10,000.00	7,500.00	2,500.00	35,341.70	49,949.60
31	Thomas Yalbees	50,000.00	10,000.00	7,500.00	2,500.00	70,000.00	98,933.33
32	Smith Thanda	50,000.00	10,000.00	7,500.00	2,500.00	70,000.00	98,933.33
33	Glenes Daniel	5,343.00	10,000.00	7,500.00	2,500.00	25,343.00	35,818.12
34	John Bee	5,549.50	10,000.00	7,500.00	2,500.00	25,549.50	36,109.96
35	Rose Yakuman	5,477.10	10,000.00	7,500.00	2,500.00	25,477.10	36,007.63
36	Waksi Kaka	16,088.50	10,000.00	7,500.00	2,500.00	36,088.50	51,005.08
37	Nena Bre	6,555.50	10,000.00	7,500.00	2,500.00	26,555.50	37,531.77
38	Steven Tae	6,526.80	10,000.00	7,500.00	2,500.00	26,526.80	37,491.21
39	John Pilima	6,596.20	10,000.00	7,500.00	2,500.00	26,596.20	37,589.30
40	Philip Mel	6,836.20	10,000.00	7,500.00	2,500.00	26,836.20	37,928.50
41	Judah Kama	7,086.20	10,000.00	7,500.00	2,500.00	27,086.20	38,281.83
42	Ezekiel Martin	6,663.00	10,000.00	7,500.00	2,500.00	26,663.00	37,683.71
43	David Bona	5,307.60	10,000.00	7,500.00	2,500.00	25,307.60	35,768.07
44	Pais Ivoro	6,950.90	10,000.00	7,500.00	2,500.00	26,950.90	38,090.61
45	Peter Lakale	5,869.30	10,000.00	7,500.00	2,500.00	25,869.30	36,561.94
46	Benny Kony	6,109.30	10,000.00	7,500.00	2,500.00	26,109.30	36,901.14
47	Beraki Tatabe	6,747.20	10,000.00	7,500.00	2,500.00	26,747.20	37,802.71
48	Betty Yakona	6,672.20	10,000.00	7,500.00	2,500.00	26,672.20	37,696.71
49	Tolo Kendend	6,237.20	10,000.00	7,500.00	2,500.00	26,237.00	37,081.63
50	Melisa Tony	6,172.20	10,000.00	7,500.00	2,500.00	26,172.20	36,990.04
51	Council Tony Pepsi	6,168.00	10,000.00	7,500.00	2,500.00	26,168.00	36,984.12
52	Tony Yanis	6,220.00	10,000.00	7,500.00	2,500.00	26,220.00	37,057.60
53	Issac Kaupa	6,238.20	10,000.00	7,500.00	2,500.00	26,238.20	37,083.32
54	Wakion Junior	5,844.30	10,000.00	7,500.00	2.500.00	25,844.30	36,526.61
55	Peter Blacky	6,086.10	10,000.00	7,500.00	2,500.00	26,086.10	36,868.35
56	Wilson Traf	5,864.30	10,000.00	7,500.00	2,500.00	25,864.30	36,554.88
57	John Kuri Kaupa	5,741.90	10,000.00	7,500.00	2,500.00	25,741.90	36,381.89
58	Taron Mangape	16,301.20	10,000.00	7,500.00	2,500.00	36,301.20	51,305.70
59	Topi Turuku	6,380.50	10,000.00	7,500.00	2,500,00	26,380.05	37,283.80
60	Nety Agera	6,189.80	10,000.00	7,500.00	2,500.00	26,189.80	37,014.96
61	Lucy Kapi	6,213.20	10,000.00	7,500.00	2,500.00	26,213.20	37,047.99
62	Backy Essie	6,221.80	10,000.00	7,500.00	2,500.00	26,221.80	37,060.14
63	Albert Tokai	6,574.20	10,000.00	7,500.00	2,500.00	26,574.20	37,558.20
64	Ben Lunga	50,000.00	10,000.00	7,500.00	2,500.00	70,000.00	98,933.33
65	John Lipu	5,231.20	10,000.00	7,500.00	2,500.00	25,231.20	35,660.10
66	Anound Nos	5,205.00	10,000.00	7,500.00	2,500.00	25,205.00	35,623.07
67	Billy Naowen	5,225.80	10,000.00	7,500.00	2,500.00	25,225.80	35,652.46
68	Gary Yogomo	5,204.80	10,000.00	7,500.00	2,500.00	25,204.80	35,622.78
69	Jim Map	5,733.10	10,000.00	7,500.00	2,500.00	25,733.10	36,369.45
70	Kindi Naowen	5,100.90	10,000.00	7,500.00	2,500.00	25,100.90	35,475.94
71	Michael James	5,700.90	10,000.00	7,500.00	2,500.00	25,700.90	36,323.94
72	Palus Yaki	6,204.40	10,000.00	7,500.00	2,500.00	26,204.40	37,035.55
73	Peter Lakali	5,204.40	10,000.00	7,500.00	2,500.00	25,204.40	35,622.22
74	Poke Thomas	5,179.60	10,000.00	7,500.00	2,500.00	25,179.60	35,587.17
75	Roberth Napi	5,142.40	10,000.00	7,500.00	2,500.00	25,142.40	35,534.59
76	Ruben John	5,825.80	10,000.00	7,500.00	2,500.00	25,825.80	36,500.46
77	Ipi Sakias	5,135.40	10,000.00	7,500.00	2,500.00	25,135.40	35,524.70
78	Salipen Gabriel	5,160.40	10,000.00	7,500.00	2,500.00	25,160.40	35,560.03
79	San Leo	5,158.30	10,000.00	7,500.00	2,500.00	25,158.30	35,557.06
80	Wanpis Leo	5,118.30	10,000.00	7,500.00	2,500.00	25,118.30	35,500.53
81	Boni Kamri	5,126.80	10,000.00	7,500.00	2,500.00	25,126.80	35,512.54
82	Johnny Tuli	11,126.80	10,000.00	7,500.00	2,500.00	31,126.80	43,992.54
83	Samson Maima	6,631.50	10,000.00	7,500.00	2,500.00	26,631.50	37,639.19
					Total	2,381,103.35	3,365,292.75

68. The amount the Sixth Defendant will pay is tabulated hereunder.

Table 2 – Damages to be paid by the Sixth Defendant to each Plaintiff.

No.	Plaintiff	Breach of Rights (50% of award) (K)	Exemplary damages (50% of award) (K)	Total judgment sum exclusive of 2% interest (K)	Total judgment sum inclusive of 2% interest (K)
1	Wilson Kuyoko	7,500.00	2,500.00	10,000.00	11,033.33
2	Mondopa Hewali	7,500.00	2,500.00	10,000.00	11,033.33
3	Komba Londari	7,500.00	2,500.00	10,000.00	11,033.33
4	Poko Sokai	7,500.00	2,500.00	10,000.00	11,033.33
5	Pastor Sue	7,500.00	2,500.00	10,000.00	11,033.33
6	Andake Erepe	7,500.00	2,500.00	10,000.00	11,033.33
7	Alice Manu	7,500.00	2,500.00	10,000.00	11,033.33
8	Elsie Mama	7,500.00	2,500.00	10,000.00	11,033.33
9	Margret Felix	7,500.00	2,500.00	10,000.00	11,033.33
10	Joseph Hanape	7,500.00	2,500.00	10,000.00	11,033.33
11	Patrick Pawa	7,500.00	2,500.00	10,000.00	11,033.33
12	Dokas Yangoma	7,500.00	2,500.00	10,000.00	11,033.33
13	Lemon Kaka	7,500.00	2,500.00	10,000.00	11,033.33
14	Ronald Rowa	7,500.00	2,500.00	10,000.00	11,033.33
15	Willy Pama	7,500.00	2,500.00	10,000.00	11,033.33
16	Patrick Koalo	7,500.00	2,500.00	10,000.00	11,033.33
17	Jacky Alo	7,500.00	2,500.00	10,000.00	11,033.33
18	Tazi Benane	7,500.00	2,500.00	10,000.00	11,033.33
19	Thomas Aluya	7,500.00	2,500.00	10,000.00	11,033.33
20	Jerry Etopa	7,500.00	2,500.00	10,000.00	11,033.33
21	Songe Ame	7,500.00	2,500.00	10,000.00	11,033.33
22	Pangopi Hewa	7,500.00	2,500.00	10,000.00	11,033.33
23	Nokai Kuyema	7,500.00	2,500.00	10,000.00	11,033.33
24	Esther Albert	7,500.00	2,500.00	10,000.00	11,033.33
25	Esasy Kopi	7,500.00	2,500.00	10,000.00	11,033.33
26	Michael Koi	7,500.00	2,500.00	10,000.00	11,033.33
27	Mary Pere	7,500.00	2,500.00	10,000.00	11,033.33
28	Elu Male	7,500.00	2,500.00	10,000.00	11,033.33
29	Cathy Abulu	7,500.00	2,500.00	10,000.00	11,033.33
30	Wasa Luso	7,500.00	2,500.00	10,000.00	11,033.33
31	Thomas Yalbees	7,500.00	2,500.00	10,000.00	11,033.33
32	Smith Thanda	7,500.00	2,500.00	10,000.00	11,033.33
33	Glenes Daniel	7,500.00	2,500.00	10,000.00	11,033.33
34	John Bee	7,500.00	2,500.00	10,000.00	11,033.33
35	Rose Yakuman	7,500.00	2,500.00	10,000.00	11,033.33
36	Waksi Kaka	7,500.00	2,500.00	10,000.00	11,033.33
37	Nena Bre	7,500.00	2,500.00	10,000.00	11,033.33
38	Steven Tae	7,500.00	2,500.00	10,000.00	11,033.33
39	John Pilima	7,500.00	2,500.00	10,000.00	11,033.33
40	Philip Mel	7,500.00	2,500.00	10,000.00	11,033.33
41	Judah Kama	7,500.00	2,500.00	10,000.00	11,033.33
42	Ezekiel Martin	7,500.00	2,500.00	10,000.00	11,033.33
43	David Bona	7,500.00	2,500.00	10,000.00	11,033.33
44	Pais Ivoro	7,500.00	2,500.00	10,000.00	11,033.33
45	Peter Lakale	7,500.00	2,500.00	10,000.00	11,033.33
46	Benny Kony	7,500.00	2,500.00	10,000.00	11,033.33
47	Beraki Tatabe	7,500.00	2,500.00	10,000.00	11,033.33
48	Betty Yakona	7,500.00	2,500.00	10,000.00	11,033.33
49	Tolo Kendend	7,500.00	2,500.00	10,000.00	11,033.33
50	Melisa Tony	7,500.00	2,500.00	10,000.00	11,033.33
51	Council Tony Pepsi	7,500.00	2,500.00	10,000.00	11,033.33
52	Tony Yanis	7,500.00	2,500.00	10,000.00	11,033.33
53	Issac Kaupa	7,500.00	2,500.00	10,000.00	11,033.33
54	Wakion Junior	7,500.00	2,500.00	10,000.00	11,033.33
55	Peter Blacky	7,500.00	2,500.00	10,000.00	11,033.33
56	Wilson Traf	7,500.00	2,500.00	10,000.00	11,033.33
57	John Kuri Kaupa	7,500.00	2,500.00	10,000.00	11,033.33
58	Taron Mangape	7,500.00	2,500.00	10,000.00	11,033.33
59	Topi Turuku	7,500.00	2,500.00	10,000.00	11,033.33
60	Nety Agera	7,500.00	2,500.00	10,000.00	11,033.33
61	Lucy Kapi	7,500.00	2,500.00	10,000.00	11,033.33
62	Backy Essie	7,500.00	2,500.00	10,000.00	11,033.33
63	Albert Tokai	7,500.00	2,500.00	10,000.00	11,033.33
64	Ben Lunga	7,500.00	2,500.00	10,000.00	11,033.33
65	John Lipu	7,500.00	2,500.00	10,000.00	11,033.33
66	Anound Nos	7,500.00	2,500.00	10,000.00	11,033.33
67	Billy Naowen	7,500.00	2,500.00	10,000.00	11,033.33
68	Gary Yogomo	7,500.00	2,500.00	10,000.00	11,033.33
69	Jim Map	7,500.00	2,500.00	10,000.00	11,033.33
70	Kindi Naowen	7,500.00	2,500.00	10,000.00	11,033.33
71	Michael James	7,500.00	2,500.00	10,000.00	11,033.33
72	Palus Yaki	7,500.00	2,500.00	10,000.00	11,033.33
73	Peter Lakali	7,500.00	2,500.00	10,000.00	11,033.33
74	Poke Thomas	7,500.00	2,500.00	10,000.00	11,033.33
75	Roberth Napi	7,500.00	2,500.00	10,000.00	11,033.33
76	Ruben John	7,500.00	2,500.00	10,000.00	11,033.33
77	Ipi Sakias	7,500.00	2,500.00	10,000.00	11,033.33
78	Salipen Gabriel	7,500.00	2,500.00	10,000.00	11,033.33
79	San Leo	7,500.00	2,500.00	10,000.00	11,033.33
80	Wanpis Leo	7,500.00	2,500.00	10,000.00	11,033.33
81	Boni Kamri	7,500.00	2,500.00	10,000.00	11,033.33
82	Johnny Tuli	7,500.00	2,500.00	10,000.00	11,033.33
83	Samson Maima	7,500.00	2,500.00	10,000.00	11,033.33
			Total	830,000.00	915,766.39

69. The Second Defendant will pay the damages for negligence and will pay half the amount for breach of human rights. The Sixth Defendant will pay the other half of the amount awarded for breach of human rights. This means that the Second Defendant will pay the Plaintiffs a total of K3,365,292.75 inclusive of 8% interest as per the various amounts awarded to each Plaintiff stated in Table 1 above and the Sixth Defendant will pay a total of K915,766.39 to the Plaintiffs at the various amounts awarded to each Plaintiff stated in Table 2 above, inclusive of 2% interest.
70. The total judgment sum payable to the Plaintiffs inclusive of interest is K4,281,059.14.

Costs

71. The normal rule is that costs follow the event. I will award costs in favour of the Plaintiffs, to be taxed if not agreed. As a percentage of the total sum awarded, that is K3,365,292.75 out of K4,281,059.14, Second Defendant (Macata Enterprises Ltd) will pay 79% of the costs (rounded of to the nearest whole number) and the Sixth Defendant (the State) will pay 21% of the costs (again, rounded off to the nearest whole number).
    

Orders

72. The formal orders of the court are therefore as follows:
    • 1. The Second Defendant, that is Macata Enterprises Ltd, pay the Plaintiffs a judgment sum of K3,365,292.75 inclusive of 8% interest as per the various amounts awarded to each Plaintiff stated in Table 1 above.
    • 2. The Sixth Defendant, that is the State, will pay a judgment sum of K915,766.39 inclusive of 2% interest to the Plaintiffs at the various amounts awarded to each Plaintiff stated in Table 2 above.
    • 3. The Second Defendant and Sixth Defendants will pay the Plaintiffs’ costs to be taxed if not agreed, where the Second Defendant will pay 79% of the costs and the Sixth Defendant will pay 21% of the costs.
    • 4. The matter is considered determined and the file is closed.
    • 5. Time is abridged.
73. Judgement and orders accordingly.

________________________________________________________________
Jerry Siki Lawyers: Lawyers for the Plaintiffs
Japson Lawyers: Lawyers for the Second Defendant
Solicitor-General: Lawyer for the Sixth Defendant