Koimo v Independent State of Papua New Guinea [1995] PNGLR 535 (31 May 1995)

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[1995] PNGLR 535 - James G Koimo v The Independent State of Papua New Guinea

DAMAGES - Exemplary damages - Police raid on village and illegal search of village - Seizure of property - Circumstances in which exemplary damages should be awarded - Measure of damages.

CONSTITUTIONAL LAW - Infringement of rights by police - Constitution sections 44, 49, 53, 57 and 58 - Whether damages for infringement of constitutional rights should be awarded in addition to compensatory damages for the same acts.

CONSTITUTIONAL LAW - Practice and procedure - Constitution s 185 - Formulation of rules relating to onus of proof and standard of proof on award of damages for infringement of rights.

The plaintiff claimed damages on behalf of himself and 27 others for an illegal search and raid conducted by police on the plaintiff’s village when police entered the village, fired shots, burnt down houses and their contents, shot and killed livestock, and carried away the personal property of the plaintiff and others. The defendant failed to defend the proceedings, and a default judgment for damages to be assessed was entered by the plaintiff.

1. Where the violation of constitutional rights alleged is based on the same acts for which compensatory damages are awarded, the compensatory damages extend to the alleged violation of rights. No separate award should be made for the violation of rights since this would amount to unjust enrichment of the plaintiff.

2. The principles applying to an award of exemplary damages for the acts of police in carrying out raids on villages must rest on a different footing to principles applicable to assaults by police and prison officers on persons in custody.

3. The reasoning that, in general, awards of exemplary damages should not be made against the State, as opposed to awards made against individual police officers, unless there is evidence to show that the State sanctioned the raids in some form, such as under a direction or pursuant to a policy, is too restrictive.

4. A restrictive approach should not be followed in awarding exemplary damages based on vicarius liability where there has been a violation of constitutional rights. In situations involving the acts of servants of the State, exemplary damages are awarded at common law where the action is oppressive, arbitrary, or unconstitutional. An award of exemplary damages serves to show the disapproval of the Court and the indignation of the public at the oppressive action of the servants of the State, requires that the State take appropriate remedial action, and adversely affects the reputation of the State.

5. Sections 57 and 58 of the Constitution, in providing for damages to be awarded for breach of constitutional rights, do not provide for the practice and procedure to be followed. The following procedures, made under s 185 of the Constitution should be followed in claims for damages for infringement of constitutional rights, in particular in claims for exemplary damages:

(a) The person claiming bears the burden of proving a prima facie breach of a constitutional right.

(b) The burden is to be discharged on the balance of probabilities. Where the claim is based on the acts of police, the person claiming must produce some credible evidence of the alleged infringement of rights and, where exemplary damages are claimed, evidence that the acts of police were oppressive, arbitrary, or unconstitutional. The person claiming need not show that a police raid was officially sanctioned or conducted or directed under the official policy of the State, as this information would be confidential and known only to the State and its servants.

(c) The onus is then on the State to show that the acts of its servants were reasonably necessary or justified in the circumstances of a particular case or, where the action complained of was taken pursuant to a discretion conferred by law, were justified or required by law. The burden on the State is a heavy one.

(d) The Court will determine issues of liability and damages as in a civil case, but with due regard to (a) (b) and (c).

6. An assessment of exemplary damages in cases involving police raids on villages must take account of the nature and scale of the police operation and the extent of the destruction or loss of property.

INJIA J.: The plaintiff sues for and on behalf of himself and 27 other plaintiffs pursuant to Authority to Act filed on 25 February 1995. Liability is not disputed, as there is a default judgment against the defendant ordered on 25 March 1994. This is an undefended trial on assessment of damages.

The plaintiff’s claim for damages arises from an illegal search and raid conducted by certain unidentified policemen in a combined police operation involving policemen from Minj Police Station, Nondugl Police Station, and Mount Hagen Police Station at Konmal village on 13 July 1992. The raid followed an armed robbery on the Okuk Highway some days earlier. Armed policemen converged at Konmal village in the early morning, fronted up at the doorsteps of the dwelling houses, fired shots into the air and, after scaring away the occupants, indiscriminately burnt down houses together with their contents, shot and killed livestock such as pigs and took others away, and carried out general destruction of the plaintiffs’ food gardens and other personal belongings. Oral evidence of the raid was given by James Koimo, Ben Binja, Peter Gele, and Caspar Kiye. Photographs of burnt down houses were also tendered. The evidence of James Koimo is impressive. He is an experienced rural development officer with the Department of Primary Industry for some 23 years and currently employed as a Field Development Manager with the Coffee Industry Corporation. He took stock of all the properties lost or destroyed and allocated a monetary value to each item. As for the economic value of cash crops and trees, he used the Department of Primary Industry price list formulated on 19 October 1988, which is currently in use. I have carefully checked the estimated values and consider them to be fair and reasonable. The plaintiff’s lawyer has calculated the total value of the properties at K37,312.18, which is apportioned between 28 plaintiffs, including Mr Koimo. I accept his calculations. I award general special damages in the total sum of K37,312.18. I also award 8% interest on the K37,312.18, from the date of commencement of the proceedings, which is 14 December 1993, to the date of judgment.

The plaintiff also seeks separate damages for violation of constitutional rights and exemplary damages pursuant to Constitution s 58(2). I will first deal with violation of constitutional rights. The plaintiff identifies the constitutional rights violated as freedom from arbitrary search and entry (Constitution s 44) and right to privacy (Constitution s 49). To those, I would add protection from unjust deprivation of property (Constitution s 53). In support, Mr Kopunye cites various cases, including Kofowei v Siviri [1983] PNGLR 449; Amaiu v Commissioner of Corrective Institutions [1983] PNGLR 87, and Pauta v Commissioner of Corrective Institutions [1982] PNGLR 7.

The evidence is that the illegal search was conducted on the same properties or houses before they were burnt or destroyed. This evidence is consistent with paragraphs 6 and 7 of the statement of claim, where the plaintiff alleged that the “method of the said raid and search were by indiscriminately burning down of houses together with the contents, shooting and killing of live stocks taking custody of live stock and general destruction of properties of the plaintiff(s)”. I have already made an award for compensatory damages for loss and destruction of property in the sum of K37,312.18. That compensation should also cover violation of constitutional rights under ss 44, 49, and 53, because these violations were committed in the same act. The illegal search and invasion of privacy in the house becomes merely academic when the very property is destroyed or lost. I do not think separate damages under the category of violation of constitutional rights is justified, for to so do would unjustly enrich the plaintiff twice for the same properties which were searched and seized or destroyed.

The plaintiff’s claim for exemplary damages is advanced in the context of judicial divergence of opinion among various judges of the National Court as to whether exemplary damages should be awarded against the State for the wrongs committed by its servants, such as policemen. On one hand, Mr Kopunye refers to the decisions in Kuriti v PNG [1994] PNGLR 262, Kopi v PNG [1994] PNGLR 475, Salamon v PNG [1994] PNGLR 265, Apa v PNG [1995] PNGLR 43 in which the National Court declined to award exemplary damages against the State in claims arising out of village raids by policemen. The decisions in Kuriti and Apa have been appealed against, and they are pending determination by the Supreme Court. On the other hand, I am referred to decisions in various cases including the unpublished, unnumbered Doa v PNG WS 120/93, Maimel v PNG WS 123/93, and Tagai v PNG WS 121/93, in which the National Court at Mount Hagen, Akuram AJ presiding, awarded exemplary damages, relying upon the case of Amaiu and other cases referred to by Mr Kopunye. I am also referred to unpublished, unnumbered Marinda v PNG, in which I awarded K1,000 for exemplary damages for personal injuries, but I think that is not an important case because it was a judgment by consent, and the personal injury was not sustained in a village raid.

The reasoning in those cases where exemplary damages have been awarded is based on principles enunciated earlier in the cases of Kofowei and Amaiu and followed through in other decisions like Pauta. But those cases relate to assaults committed upon persons held in custody by either police personnel or correctional services personnel. Exemplary damages in relation to illegal search, entry, and destruction of property in the village must rest on a different footing.

The reasoning given by Woods J in the cases of Kuriti, Kopi, and Salamon and in the more recent unpublished, unnumbered case of Mase v PNG WS No 203 of 1994 are similar to reasons given by Sheehan J in Apa’s case. The argument advanced in favour of awarding exemplary damages against the State in these cases is that, whilst exemplary damages may be awarded against the individual policemen involved, it cannot be awarded against the State unless there is evidence produced by the plaintiff to show that the State, as an institution, officially sanctioned, directed, or approbated these raids, or that the raids were conducted in pursuance of a policy of the Department or the State. The argument goes that the State cannot be held responsible for the deliberate action of protagonists. Further, an award for exemplary damages will not have a punitive or deterrent effect on the State.

These arguments are valid as being relative to the exercise of judicial discretion in awarding exemplary damages in general. Support for these arguments may be found in the common law principle which takes a rather restrictive view on exemplary damages. At common law, whilst exemplary damages are normally awarded against the State for the “oppressive, arbitrary or unconstitutional” actions of its servants and agents, the exercise of that discretion is fairly restricted by there considerations, which were spelt out by Lord Devlin in the House of Lords’ decision in Rookes v Barnard [1964] UKHL 1; [1964] AC 1129 at 1227; [1964] UKHL 1; [1964] 1 All ER 367 at 411; [1964] UKHL 1; [1964] 2 WLR 269 at 329, Lord Devlin said:

“I wish now to express three considerations which I think should always be borne in mind when awards of exemplary damages are being considered. First, the plaintiff cannot recover exemplary damages unless he is the victim of the punishable behaviour. The anomaly inherent in exemplary damages would become an absurdity if a plaintiff totally unaffected by some oppressive conduct which the jury wished to punish obtained a windfall in consequence. Secondly, the power to award exemplary damages constitutes a weapon that, which it can be used in defence of liberty, as in the Wilkes case, can also be used against liberty. Some of the awards that juries have made in the past seem to me to amount to a greater punishment than would be likely to be incurred if the conduct were criminal; and, moreover, a punishment imposed without the safeguard which the criminal law gives to an offender. I should not allow the respect which is traditionally paid to an assessment of damages by a jury to prevent me from seeing that the weapon is used with restraint. It may even be that the House may find it necessary to follow the precedent it set for itself in Benham v Gambling, and place some arbitrary limit on awards of damages that are made by way of punishment. Exhortations to be moderate may not be enough. Thirdly, the means of the parties, irrelevant in the assessment of compensation, are material in the assessment of exemplary damages. Everything which aggravates or mitigates the defendant’s conduct is relevant.”

In relation to the question of whether an employer is vicariously liable to pay exemplary damages for the actions of his employee, Sheehan J, in Apa’s case at p 51, endorsed the statement from Atiyah, Vicarious Liability in the Law of Torts (Butterworths 1967). The learned author noted that there was no English authority in which there has been any decisions on the question of whether exemplary damages can be awarded against an employer who is vicariously liable for the tort of a servant. He went on to suggest that exemplary damages should only be awarded in four situations, namely:

3. the agent was employed in a managerial capacity and was acting within the scope of that capacity, or

4. as the principal or manager, he ratified or approved the actions causing damage.

With respect, I would differ from the views expressed by Woods J and Sheehan J. The approach taken in the above cases is too restrictive and not consistent with the Constitution. As in this case, in a case where the plaintiff claims exemplary damages for violation of constitutional rights, the source of primary law is the Constitution, s 58, which provides:

(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 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 -

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 or proof or the belief referred to in paragraph (b) is on the party alleging it.” (Emphasis mine.)

The award of exemplary damages in respect of the infringement of a constitutional right in appropriate cases is discretionary: subsection (2). “Exemplary damages” is not defined by the Constitution. Generally speaking, exemplary damages are awarded to punish the offender. In situations where actions of government servants are involved, exemplary damages are awarded where the action is “oppressive, arbitrary, or unconstitutional”: Halsbury’s Laws of England (401 edn) vol 12, para 1190. The term “exemplary damages” only appears in subsection (2). Subsection (3) - (5) only use the word “damages”. I interpret “damages” in subsections (3) - (5) as inclusive of “exemplary damages”. Subsection (3) empowers the Court to award exemplary damages against a “person”, meaning a natural person, who committed, or was responsible for, the infringement. Subsection (4) applies to situations where the infringement committed was by a governmental body through its agents or servants. Under subsection (4)(a), exemplary damage may be awarded against a natural person referred to in subsection (3), subject to a defence of genuine belief raised and shown by the person under subsection (5). Under subsection (4)(b), exemplary damages may be awarded against the government body to which such “person” was responsible. However, by excluding the words “subject to subsection (5)” in subsection (4)(b), by implication, it seems that a defence of genuine belief under subsection (5) is not available to a governmental body. The rationale is that a “genuine belief” relates to a personal belief held by a natural person. So, on the force of subsections (2) and (4)(b) alone, exemplary damages can be awarded against the State, being the governmental body, for the infringement of constitutional rights by its officers, in this case policemen. A policeman is a servant of the government or the State, and the State is vicariously liable for the wrongful actions of a policeman, whether deliberate or otherwise: PNG v Kofowei [1987] PNGLR 5. Subsections (2) and (4)(b) are founded on the principle of vicarious liability of the State for the actions of its servants. There is no doubt that whilst a punitive award against the State may not have the desired punitive effect immediately, it will certainly, in principle, show the Court’s disapproval and the public’s indignation of the oppressive actions of its servants and agents and require the State to take appropriate action to rectify the situation. It will also adversely affect the reputation of the State.

There is one other important related matter. There is no provision in Constitution ss 58 or 57 relating to the practice and procedure related to the onus and standard of proof of the infringement, the defences which are available to the defendant, and the standard of proof of that defence. Except for the defence of genuine faith in s 58(5), which is only available to an individual person who committed the infringement under s 58(4)(a), there is no provision in s 58 on these matters.

The National Court has wide powers to enforce constitutional rights: Constitution ss 57 and s 58(2). The National Court is also empowered by s 185 to make ad hoc rules of practice and procedure where there are no rules of practice and procedure in cases where enforcement of constitutional rights are involved: State v Quati [1990] PNGLR 57. Also see Re Conditions at Buimo Corrective Institution [1988-89] PNGLR 266. I would formulate the following ad hoc rules and related principles in relation to proof of claims for damages on constitutional infringement generally and, in particular, exemplary damages:

1. The plaintiff bears the evidentiary burden of establishing a prima facie case of proving the infringement of the constitutional right.

2. The standard of proof is on the balance of probabilities. In cases where actions of policemen are involved, the plaintiff merely has to produce some credible evidence of the infringement of the constitutional right and, where exemplary damages are sought, that the actions of the policemen were “oppressive, arbitrary, or unconstitutional”, such that a punitive award of damages is justified. It is not necessary for the plaintiff to show that the police raid was officially sanctioned, directed, approbated, or conducted in pursuance of an official policy of the Police Department or the State. The reason for this is simple. How will ordinary village people be expected to know the scheme or policy and operational system of the police force to be able to give evidence about it? The nature of police work is confidential and secretive.

Almost all village raids involving large number of policemen are planned from the top police hierarchy down, in secret, and carried out without warning. The identity of individual policemen is hardly known to ordinary village people. In many cases, policemen do not co-operate with village people in disclosing information regarding their operations, as was the situation in the instant case. Therefore, the ordinary village people cannot be able to sue the individual policemen. That is why the evidentiary burden is one of merely establishing a prima facie case.

3. The onus is then on the government, as an institution, to show why the actions of its officers were justified or required by law. This rule is analogous to Constitution 58(5), which places the evidentiary burden on the government servant to justify his action. It is also analogous to s 38(3), which places the burden on the State to show the validity of a law which infringes a constitutional right.

The State must place sufficient evidence before the Court to satisfy the Court that the actions were required or justified by law or, where the action taken was in pursuance of a discretion conferred by law, that the action was reasonably necessary or justified in the circumstances of a particular situation. This burden is a heavy one.

Support for (1), (2), and (3) above is founded in the principle enunciated by Kapi J (as he then was) in SCR No 2 of 1982; Re Organic Law [1982] PNGLR 214 at 238:

“It would be sufficient for the party who alleges that a law is unconstitutional merely to prove that his right is infringed. He is only required to show a prima facie case. Where this is shown, then the onus is on the party who relies on the validity of the law to prove that it is within the limitation provided by the Constitution.”

4. The Court will determine the issues of liability and damage in the normal way it does in a civil case, but paying due regard to (1), (2), and (3) above.

In the instant case, there is sufficient evidence that the policeman acted in an oppressive and arbitrary manner. They had no search warrant to search the village. They had no lawful excuse whatsoever to burn down houses, slaughter livestock, remove coffee machines, and so on in the process of conducting the search. There is no defence raised or any evidence before me from the State or the policemen concerned that such actions were required or justified by law. In the circumstances, I am inclined to make an award for exemplary damages.

As to the amount of exemplary damages, I am referred to the awards in the cases referred to by the plaintiff. The Court has a discretion to award damages in such amount as it sees fit. My own view is that the amount must be relative to the nature and scale of the operation and the extent of the destruction or loss of property. I consider that a nominal amount of K400 for each plaintiff is an appropriate amount.

I am asked by the plaintiff to defer decision on this claim pending the decision on the appeals lodged against the other decisions referred to in which exemplary damages are involved. However, as I have awarded exemplary damages to the plaintiff, I do not think the outcome of the Supreme Court decision will affect my decision. Nevertheless, I will grant liberty to either party to apply for variation of this order on the question of exemplary damages, depending on the decision of the Supreme Court on the issue.

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Papua New Guinea Law Reports

Koimo v Independent State of Papua New Guinea [1995] PNGLR 535 (31 May 1995)

PNG Law Reports 1995