Alphonse Willie v Simon Kaupa

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 25 November 2016
• Citation: (2016) N6553
• Court: National Court
• Year: 2016
• Judgement Number: N6553

Full : MP (HR) No 658 of 2000; Alphonse Willie on his own behalf and on behalf of 1,852 Members of the Gena Tribe of Kerowagi, Simbu Province v Simon Kaupa, Provincial Police Commander, Simbu Province and John Wakon, Commissioner of Police and the Independent State of Papua New Guinea (2016) N6553

National Court: Cannings J

Judgment Delivered: 25 November 2016

N6553

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP (HR) NO 658 OF 2000

ALPHONSE WILLIE ON HIS OWN BEHALF AND ON BEHALF OF 1,852 MEMBERS OF THE GENA TRIBE OF KEROWAGI, SIMBU PROVINCE

Plaintiffs

V

SIMON KAUPA, PROVINCIAL POLICE COMMANDER,

SIMBU PROVINCE

First Defendant

JOHN WAKON, COMMISSIONER OF POLICE

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Cannings J

2015: 28 May, 2 October

2016: 13, 28 October, 24, 25 November

DAMAGES – unlawful Police raid of villages – property damage – assessment of damages after entry of default judgment – damages for trespass and breach of human rights.

The plaintiffs sued the Police and the State after a series of raids on villages in a rural location resulted in damage to their properties. Default judgment was entered against the State, which was held to be vicariously liable for the torts of trespass to property and detinue and for breaches of human rights committed by members of the Police Force. At this trial on assessment of damages, the plaintiffs, comprising a principal plaintiff and 1,852 others, sought damages in four categories: (a) general damages, K6,349,547.00; (b) special damages, K319,500.00; (c) exemplary damages, K33,740,000.00; and (d) breach of constitutional rights, K33,740,000.00, a total claim of K74,149,047.00. In response, the State argued that the entire proceedings should be dismissed, for two reasons: (a) failure to comply with Section 5 of the Claims By and Against the State Act; and (b) failure to comply with the requirements for commencing proceedings in a representative capacity. The State further argued, if those preliminary arguments were rejected, that because of deficiencies in the evidence, the 1,687 plaintiffs who gave evidence should simply be awarded a global sum of K5,000.00 each to cover all causes of action and all categories of damages.

Held:

(1) Both preliminary arguments of the State were rejected as they were made orally, late (well after entry of default judgment), without notice and without evidence. Such arguments must be made by notice of motion, in a timely manner (in this case, soon after entry of default judgment) and supported by affidavit. The Court proceeded to assess damages on the basis of the evidence before it.

(2) Having noted the deficiencies in the plaintiffs’ evidence, due to lack of personal details of each of the plaintiffs, lack of corroboration, lack of evidence to support the claims for special damages and lack of clarity as to alleged breaches of constitutional rights, and also observing that the State conceded that unlawful raids of villages had occurred in the manner alleged by the plaintiffs and that property damage had been incurred, the Court upheld the State’s submission that the most appropriate method of assessment was to award a global sum of K5,000.00 to each plaintiff who had given evidence, to cover all causes of action and all categories of damages.

(3) In addition each plaintiff was awarded interest on the sum of K5,000.00, at the rate of 2% per annum, for the period from the date of entry of default judgment (3 May 2007) to the date of judgment (13 October 2016), a period of 9.45 years = K945.00.

(4) The total judgment sum was therefore K5,000.00 (general damages) + K945.00 (interest) = K5,945.00 for each of 1,687 plaintiffs, being a grand total of K10,029,215.00.

Cases cited

The following cases are cited in the judgment:

Albert Baine v The State (1995) N1335

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

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

Peter Wanis v Fred Sikiot and The State (1995) N1350

William Mel v Coleman Pakalia (2005) SC790

Yange Lagan and Others v The State (1995) N1369

Yooken Paklin v The State (2001) N2212

TRIAL

This was a trial on assessment of damages following entry of default.

Counsel:

R T Yansion, for the Plaintiffs

M Kias, J Kerenge & F Luvi, for the Defendants

25 November, 2016

1. CANNINGS J: This was a trial on assessment of damages following entry of default judgment against the third defendant, the State.

2. In August-September 2000 members of the Police Force, with the support of members of the Correctional Service, carried out a series of searches and raids of various villages in the Gena area of Kerowagi District, Simbu Province. The purpose of the operation was to locate and arrest suspects involved in a break-in of the armoury of the Barawagi Correctional Institution, Simbu Province, which had occurred on 8 August 2000, which resulted in the theft of high-powered semi-automatic weaponry. The operation was successful in the sense that the bulk of the stolen weapons was recovered and a number of suspects were arrested and charged. During the course of the raids, however, members of the Police Force did considerable damage to the property of the villagers.

3. Many of the villagers were aggrieved by what happened. On 16 October 2000, one of them, Alphonse Willie (the principal plaintiff), commenced proceedings “on his own behalf and on behalf of Gena Tribe” against the then Provincial Police Commander, Simon Kaupa (first defendant), the then Commissioner of Police, John Wakon (the second defendant) and the State (third defendant). The proceedings were framed as an application for enforcement of constitutional rights.

4. For some reason, unknown to the Court, the plaintiff did not prosecute the claim until several years later, and the defendants took no effective steps to have the proceedings dismissed for want of prosecution. On 10 August 2006 the Court ordered the principal plaintiff to reduce the claim to a statement of claim. A statement of claim was duly filed on 26 January 2007 and served on the defendants. It described the plaintiffs as “Alphonse Willie on his own behalf and on behalf of the 1,852 Gena Tribe members of Kerowagi, Simbu Province”. The defendants failed to file their defence within the time permitted by the National Court Rules.

5. On 26 April 2007 the National Court ordered default judgment against the third defendant, the State, which was held to be vicariously liable for the torts of trespass to property and detinue and for breaches of constitutional rights committed by members of the Police Force in the raids that took place in August-September 2000. The Court ordered a trial on assessment of damages. The order was formally entered on 2 May 2007. No judgment was entered against the first or second defendants. Nor have the proceedings against them been dismissed.

6. The proceedings then again went into hibernation – again for reasons unknown to the Court – until revived in 2015. Directions were given for this trial on assessment of damages.

EVIDENCE

7. The plaintiffs’ case consisted of affidavits sworn by 1,687 of the original 1,852 plaintiffs. Each affidavit set out in general terms what the Police had done and the property damage incurred by the plaintiff and stated a monetary value of the property allegedly damaged, destroyed or stolen. The largest amount claimed was K11,532.00. The smallest claim was K342.00. The defendants adduced no evidence.

COMPETING SUBMISSIONS

8. The plaintiffs seek damages in four categories:

(a) general damages, K6,349,547.00;

(b) special damages, K319,500.00;

(c) exemplary damages, K33,740,000.00; and

(d) breach of constitutional rights, K33,740,000.00.

The total claim is K74,149,047.00. This claim is made for only 1,543 of the 1,687 plaintiffs who gave evidence.

9. In response, the State argues that despite entry of default judgment the entire proceedings should be dismissed, for two reasons:

(a) failure to comply with Section 5 of the Claims By and Against the State Act; and

(b) failure to comply with the requirements for commencing proceedings in a representative capacity.

10. The State further argues, if those preliminary arguments are rejected, that because of deficiencies in the evidence, the 1,687 plaintiffs who gave evidence should simply be awarded a global sum of K5,000.00 each to cover all causes of action and all categories of damages. I will first deal with the State’s preliminary arguments and then address the competing approaches to assessment that have been put to the Court.

PRELIMINARY ARGUMENTS

11. I dismiss both arguments as they have been made only orally, they are made very late (eight years after entry of default judgment), without notice and without evidence. Such arguments must be made by notice of motion, in a timely manner (in this case, soon after entry...