Anuta Jobou & Koro Wagi on behalf of Themselves and the Villagers of Bom Village, Rai Coast v Alfred Kumasi and Robert Kalasim and The Independent State of Papua New Guinea (2012) N4607

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 09 March 2012
• Court: National Court
• Citation: (2012) N4607
• Docket Number: WS NO 1444 of 2002
• Year: 2012
• Judgement Number: N4607

Full Title: WS NO 1444 of 2002; Anuta Jobou & Koro Wagi on behalf of Themselves and the Villagers of Bom Village, Rai Coast v Alfred Kumasi and Robert Kalasim and The Independent State Of Papua New Guinea (2012) N4607

National Court: Cannings J

Judgment Delivered: 9 March 2012

N4607

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1444 OF 2002

ANUTA JOBOU & KORO WAGI

ON BEHALF OF THEMSELVES AND THE VILLAGERS OF

BOM VILLAGE, RAI COAST

Plaintiffs

V

ALFRED KUMASI

First Defendant

ROBERT KALASIM

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Madang: Cannings J

2011: 23, 24, 25 August, 11 November,

2012: 9 March

TORTS – negligence – breach of human rights – alleged unlawful destruction of properties by police – police raid of village – whether the State vicariously liable for conduct of police officers – assessment of damages.

An armed police squad entered a village in pursuit of a prison escapee who had allegedly shot dead a policeman. The plaintiffs, 155 villagers, alleged that it was a police raid and that the police terrorised them and burned down their houses, killed livestock and destroyed property. They commenced proceedings against the officer in charge of the police squad, the provincial police commander and the State, claiming damages for negligence and breach of constitutional rights, in the sum of K497,610.00 (comprising claims of K187,610.00 for property losses and K310,000.00 (K2,000.00 for each plaintiff) for breaches of constitutional rights). The defendants denied liability. At this trial on liability and damages three central issues arose: (1) whether the conduct of the police amounted to a raid or a legitimate search of the village; (2) if it was a raid, whether the plaintiffs have established liability in negligence or breach of constitutional rights; and (3) if liability is established, what amount of damages are the plaintiffs entitled to.

Held:

(1) The police operation was a raid involving indiscriminate destruction of property and not the legitimate exercise of powers of search and seizure under the Search Act.

(2) A cause of action in negligence was established against the third defendant, the State, which was vicariously liable for the tort of negligence committed by its employees, the police officers who conducted the raid. However, there was insufficient evidence to link the first or second defendants with the carrying out of the raid and liability was not established against them. As for the alleged breaches of constitutional rights, this part of the plaintiffs’ case was inadequately pleaded and liability was not established.

(3) As for assessment of damages there was insufficient evidence in full support of each claim but, on the other hand, the plaintiffs proved that they incurred substantial losses and destruction of their properties. Each claim was discounted by 50% to arrive at an award of damages for property losses.

(4) Each claimant was awarded interest on the amount of general damages, calculated at the rate of 8% per annum from the date of service of the writ to the date of judgment.

(5) Total damages awarded was K93,781.83; total interest awarded was K67,522.91; the total judgment sum being K161,304.74.

Cases cited

The following cases are cited in the judgment:

Albert Baine v The State (1995) N1335

Eriare Lanyat v The State [1997] PNGLR 253

Eton Pakui v The State (2006) N2977

Jacob Simbuaken v Neville Egari (2009) N3824

Joe Tipaiza v James Yali (2008) N3472

Jonathan Mangope Paraia v The State (1995) N1343

Justin Bau v Paul Karl (2010) N4123

Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779

Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274

Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331

Otto Benal Magiten v Rural Development Bank Ltd WS No 938 of 1999, 20.10.06

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

The State v David Wari Kofowei and Others [1987] PNGLR 5

Vincent Kerry v The State (2007) N3127

Wama Kints v The State (2001) N2113

Yange Lagan and Others v The State (1995) N1369

Yooken Paklin v The State (2001) N2212

TRIAL

This was a trial on liability and assessment of damages.

Counsel

P Kunai & G Anis, for the plaintiffs

W Mapiso, for the defendants

9 March, 2012

1. CANNINGS J: On Friday 1 November 1996 an armed police squad entered Bom village, in the Rai Coast district of Madang Province, in pursuit of a prison escapee who had allegedly the day before, at a spot near the village, shot dead a policeman. The escapee was from Bom and the police thought that he might be holed up in the village. Anuta Jobou and Koro Wagi are village elders. They claim that when the police entered the village they went on a rampage, terrorised the villagers, and burned down houses, killed livestock and destroyed property. They have led 153 other villagers in commencing legal proceedings against the officer in charge of the police squad (first defendant), the provincial police commander (second defendant) and the State (third defendant), claiming damages for negligence and breach of constitutional rights. They claim a total amount of K497,610.00, comprising claims of K187,610.00 for property losses and K310,000.00 (K2,000.00 for each plaintiff) for breaches of constitutional rights. The defendants denied liability so a trial has been conducted on liability and assessment of damages. The defendants say that there was no raid, but a legitimate police operation involving a search of the village in hot pursuit of a suspect. If the court finds that there was a raid, they say that they are still not liable as the plaintiffs’ case has been poorly pleaded. If the court finds that liability has been established, the plaintiffs should nonetheless be awarded no or a minimal amount of damages as they have not proven their losses. There are thus three central issues:

(1) Was it a raid or a legitimate search of the village?

(2) If it was a raid, have the plaintiffs established liability in negligence or breach of constitutional rights?

(3) If liability is established, what amount of damages are the plaintiffs entitled to?

1 WAS IT A RAID OR A LEGITIMATE SEARCH OF THE VILLAGE?

2. This is a question of fact. Each of the 155 plaintiffs swore an affidavit deposing to what happened. Thirty-four of them gave oral evidence and were cross-examined. Their evidence was consistent. The police, led by the Ileg Rural Police Commander, Alfred Kumasi, entered the village at 7.30 am in pursuit of the escapee. The villagers co-operated and assisted in the search but the police got angry with them, swore at and harassed them, assaulted some and then the villagers fled into the bush. Some saw the police burning down their houses, kill livestock such as pigs and chickens and destroy their property. Others discovered their losses when they returned to the village after spending several nights in the bush.

3. The second defendant, Robert Kalasim, was the only witness for the defendants. He gave oral evidence. He said that he was at the time the provincial police commander. A couple of days before the alleged raid he sent a squad of about ten police from Madang to the Bom area after receiving a report that the escapee had headed there and was believed to have committed an armed robbery in which a man had been wounded. The Madang police were to reinforce the efforts of Sgt Kumasi, the Ileg Rural Police Commander, to capture the escapee. On or about 31 October he received a report that a member of the squad that had been dispatched from Madang was shot dead, allegedly by the escapee. A few days later he recalled the squad as they reported that they were unable to locate the escapee; also it was important for the body of the deceased policeman to be brought back to town, to enable its repatriation to his home province of Manus. Soon afterwards he learned of allegations against the police and their alleged victimisation of villagers at Bom. There was, however, no formal complaint made, so no investigation of the allegations took place. He did not sanction any sort of raid of the village and he did not go to Bom at that time. His evidence was therefore that he was unable to confirm or deny the allegation that it was a raid of the village rather than an orderly and legitimate search.

4. I accept Mr Kalasim’s evidence. He did not authorise a raid or any illegitimate police operation. However, he was in no position to deny the allegations of the plaintiffs, which I find have been proven. It was not an orderly search of the village. It was a raid. The police were angry, frustrated and distressed over the death of their colleague. They thought that the villagers were hiding the person responsible so they vented their frustrations on them by burning down houses, killing livestock and destroying property.

2 HAVE THE PLAINTIFFS ESTABLISHED LIABILITY?

5. It is one thing to prove facts; it is another thing to establish liability. The plaintiffs have...