Koim v the State [1998] PNGLR 247 (26 February 1998)

[1998] PNGLR 247

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

TABIE MATHIAS KOIM & 28 OTHERS

V

THE STATE;
CHIEF INSPECTOR JIM ONOPIA, SERGEANT JOE BULHAGE, CONSTABLE DALA MENTAI AND CONSTABLE MIAMEL DAGE

MOUNT HAGEN: INJIA J
24 September 1997; 26 February 1998

Facts

The plaintiffs in this case claimed damages or loss of their personal properties when policemen from Goroka under the command of the second defendant raided and searched homes at Sirikoge village, Chuave, Simbu Province on 27th December 1994. Doors of homes were illegally or unlawfully knocked down, homes searched and set on ire, animals slaughtered and taken away. The police raid was carried out as a response to a tribal fight, which took place in the plaintiffs’ area.

Held

1. Where default judgment is granted for damages to be assessed on a given set of facts as pleaded in the statement of claim endorsed on the writ, the evidence must support the facts pleaded. No evidence will be allowed in support of facts, which are not pleaded. MVIT v Tabanato [1995] PNGLR 215 at 221; Waima v MVIT [1992] PNGLR 254 and MVIT v Pupune [1993] PNGLR 370 followed.
   
2. Plaintiffs must actually prove the damage they claim to have suffered in such claims instead of merely providing a list of items and request court to pay damages. Even a default judgment does not relieve the plaintiffs from proving their cases; Jonathan Mangope Paraia v The State and Ors, N1343 (1995) at 5, followed.
   
3. Even in representative or group action such as police raid cases each plaintiff is required to prove is own case and he cannot simply rely on the evidence of their representative or other witnesses Yange Langan & Others v The State N1369 (1995) followed.
   
4. In cases where exemplary damages are awarded, there would be duplication of damages if court was to award another round of damages for breach of constitutional rights; James Koimo v The State N1322 (1995), Abel Tomba v The State SC 518 (1997), considered.
   

Papua New Guinea cases cited

Abel Tomba v The State SC518 (1997).

James Koimo v The State N1322 (1995).

Jonathan Mangope Praia v The State N1343 (1995).

MVIT v Pupune [1993] PNGLR 370.

MVIT v Tobanato [1995] PNGLR 214.

Waima v M.V.I.T. [1992] PNGLR 254.

Yange Lagan v The State N1369 (1995).

Other case cited

Iberian Trust Limited, Founders Trust and Investment Co. Limited [1932] 2 KB 87.

Counsels

P Dowa, for plaintiff.
No appearance for the defendants.

26th February 1998

INJIA J. This is an ex parte trial, with leave, on assessment of damages following entry of default judgment against the defendants on 07/06/96 and 09/09/96. Evidence was completed on 24th September 1997 and parties were directed to file written submissions on the evidence. The plaintiff filed his on 12 December 1997.

On record, it appears that the parties have assumed that the matter was for trial on both liability and quantum of damages. However, there is default judgments on file which appear not to have been set aside. If they were set aside, nevertheless, on the evidence of the plaintiff before me, I am satisfied that the raid, search and destruction of property was unlawful. I find in favour of the plaintiff on the issue of liability.

The evidence for the plaintiff consists of the affidavits of Tapie Peter Ungal sworn on 19/05/97 (exhibit "A"); Gene Gende sworn on 19/04/97 (Exhibit "B"); Anna Tabil sworn on 19/05/97 (Exhibit "C"); Toni More sworn on 19/04/97 (Exhibit "D"); Kopi Sipa sworn on 19/04/97 (Exhibit "E"); Micah Koim More sworn on 02/05/97 (Exhibit "F"); Benson Kopi sworn on 19/04/97 (Exhibit "G"); Saina Koim sworn on 19/04/97 (Exhibit "H"); Tom Kupu Peter sworn on 02/05/97 (Exhibit "I"); Paul Tabie sworn on 19/04/97 (Exhibit "J") and Thomas Gotuna sworn on 25/05/97 (Exhibit "K"). In addition, Thomas Gotuna gave oral evidence. There is an affidavit of "Tabie Mathias Koim" sworn on 19/05/97 and filed on 21/05/97 but it is not in evidence, as Mr. Kopunye did not seek to tender this affidavit into evidence at the time of trial. This is correctly reflected out in Mr. Kopunye’s written submissions in which he sets out a list of affidavits admitted into evidence, which list does not include the affidavit of "Tabie Mathias Koim." I do not know if he is the principal plaintiff in the proceedings either because in the Writ, he is named "Tabie Mathias Koim" as well as "Tabie Mathias Kiom."

Civil actions for damages commenced in the National Court are governed by the National Court Rules. Lawyers or parties must comply with the rules provided therein. Among them, plaintiffs’ names must be correctly and accurately spelt out. Where default judgment is granted for damages to be assessed on a given set of facts as pleaded in the statement of claim endorsed on the Writ, the evidence must support the facts pleaded. No evidence will be allowed in support of facts which are not pleaded: MVIT v Tabanato [1995] PNGLR 215 at 221; Waima v MVIT [1992] PNGLR 254 and MVIT v Pupune [1993] PNGLR 370.

Plaintiffs must prove the damage they claim to have suffered. A default judgment does not relieve the plaintiff from proving his loss. It is not sufficient for the plaintiff to simply provide a list of items he lost and say to the court. "This is what I have lost. I ask you to give me the damages": Jonathan Mangope Praia v The State & Ors N1343 (1995) at p. 5. Where a representative or group action for damages is brought, such as in a police raid case, each plaintiff must provide evidence to prove his claim. It is not sufficient to simply rely on the evidence of their representatives or other witnesses: Yange Lagan & Others v The State N1369 (1995).

The plaintiffs in this case suffered damages or loss of their personal properties when policemen under the command of the Second Defendants raided and searched homes at Sirikoge village, Chuave, Simbu Province. Doors of homes were illegally or unlawfully knocked down, homes searched and set on fire, animals slaughtered and carried away etc. The raid was conducted as a response to a tribal fight, which occurred in the area.

The evidence on loss or damage is given by only 7 (seven) plaintiffs. There is affidavit evidence from plaintiffs Saina Koim (No. 2), Tom Koim Kupu (No. 3), Tabie Peter Unga (No. 5)/ Anna Tabie (No. 6), Micah Koim More (No. 7), Jean Gende (No. 10) and Benson Kopi (No. 15). There is no evidence before the Court from the other 22 plaintiffs. Of these 22 plaintiffs, Yure Yaidion’s (No. 18) claim is not pursued. His claim is therefore dismissed. That leaves a total of 21 plaintiffs without supporting evidence. The plaintiff’s counsel seems to rely on the affidavit of Const. Thomas Gutuna (Exhibit "K") in which he provides a list of plaintiffs with the properties lost by each plaintiff and the corresponding values. This list is identical to that one pleaded in the Writ. In his evidence however, Constable Gotuna says he was not present at the time when the raid occurred and the information he provides is from those he collected after the raid. His evidence is therefore secondary and hearsay. In the absence of any primary evidence from these 21 plaintiffs themselves, I am not prepared to accept his evidence. Therefore, I find that these 21 plaintiffs have not proved their loss or damages and I refuse to award any damages.

In relation to the remaining 7 (seven) plaintiffs whose loss or damages is supported by evidence, except for Tabie Peter Unga, I find their loss of items and the values attached to them to be reasonable. I award damages in the amounts claimed. From this, I deduct 5% for depreciation because the plaintiffs do not say the amounts allocated are their depreciated value.

In relation to Tabie Peter Unga, his total claim for properties as pleaded in the Writ is K2, 526.00. He confirms this figure at para. 6 - 7 of his affidavit. His Counsel, Mr. Kopunye maintains this figure in his submissions.

This plaintiff also maintains loosing another K750.00 of his own money and his father loosing K9, 000.00 but is not sure whether it was stolen by police or got burnt. He does not positively assert a claim for these monies.

In these circumstances, I refuse to award any damages for the cash money. I only award him (Tabie Peter Unga) the amount of his initial claim in the sum of K2,526.00.

I award exemplary damages in the sum of K100.00 to each of the seven plaintiffs: see Abel Tomba v State SC 518 (1997), James Koimo v The State N1322 (1995). The plaintiffs also claim damages for violation of constitutional rights on the basis that the search and destruction of property was unconstitutional. The basis of this claim is pleaded in para. 9 & 10 of the statement of claim as follows:-

"9. On the 27 of December 1994 the second defendants and the other members of the Royal Papua New Guinea Royal Constabulary from Goroka conducted an illegal raid or search of the Plaintiffs’ properties at the said Sirikoge village or alternatively if the said raid or search were legal they were done and conducted in an undisciplined and improper manner and were done without due regard to any decency and contrary to what the law required.

10. The method of the said raid or search was by indiscriminately burning down of houses together with the contents, shooting and killing of live stocks, assaulting plaintiffs and other villagers and general destructions of properties of the plaintiffs."
    

In my view, as I have already awarded compensatory damages for destruction of the very same properties which were searched, seized and destroyed and I have also awarded exemplary damages, there would be a duplication of damages if I were to award another round of damages for breach of constitutional rights: See James Koimo v The State N1322 (1995). Therefore, I refuse to award any damages for violation of constitutional rights.

I award interest on the total damages awarded to each plaintiff at 8% from the date of the Writ (30/01/96) to now. I also award costs to the plaintiffs.

A summary of the awards made to each plaintiff appears in the schedule below.

Schedule

No.	Name of Plaintiff	Compen-satory	Less 5% for depre-ciation	Plus exemplary damages	Initial damages	Plus 8% interest per annum from 30/1/96 to 26/2/98 (2 yrs 1 month)	Final Award
1.	Saina Koim	K312.60	K15.63	K100.00	K397.00	K66.06	K463.06
2.	Tom Koim Kupu	K378.00	K18.90	K100.00	K459.10	K76.39	K535.49
3.	Tabie Peter Unga	K2,526.00	K126.30	K100.00	K2,499.70	K415.95	K2,915.65
4.	Anna Tabie	K2,430.00	K121.50	K100.00	K2,408.50	K400.77	K2,809.27
5.	Micae Koim More	K1,876.00	K93.80	K100.00	K1,882.20	K313.20	K2,195.40
6.	Jean Sende	K1,040.00	K52.00	K100.00	K1,088.00	K181.04	K1,269.04
7.	Benson Kopi	K1,510.00	K75.50	K100.00	K1,534.50	K255.34	K1,789.84

I order that the first defendant, the State, satisfy the judgment debt.

Lawyer for the plaintiff: Kopunye Lawyers.
Lawyer for the defendants: Solicitor General.