Desmond Huaimbukie, Marcus Huaimbukie, Stanis Wafi Mairangian, Patrick Saihira, Hubert Makes, Malaki Yenu, Elphin Yenu and Saihengui Harinduo v James Baugen as Station Commander of Yangoru Rural Police Station and The Independent State of Papua New Guinea (2004) N2589

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 16 July 2004
• Court: National Court
• Citation: (2004) N2589
• Docket Number: WS No 58 of 2002
• Year: 2004
• Judgement Number: N2589

Full Title: WS No 58 of 2002; Desmond Huaimbukie, Marcus Huaimbukie, Stanis Wafi Mairangian, Patrick Saihira, Hubert Makes, Malaki Yenu, Elphin Yenu and Saihengui Harinduo v James Baugen as Station Commander of Yangoru Rural Police Station and The Independent State of Papua New Guinea (2004) N2589

National Court: Kandakasi J

Judgment Delivered: 16 July 2004

1 PRACTICE AND PROCEDURE—Pleadings—Plaintiff failing to properly plead his loss and damages—Defence failing to take appropriate objection—Effect of—Court can award damages up to amounts conceded by the defence.

2 LAW OF TORTS—Unlawful police raid—Destruction to houses and other properties—Whether action within the course of duty and furthering interest of the State—Whether State vicariously liable for unlawful acts of police—No arguments raised against liability—Consequence of—Award of damages not contested.

3 DAMAGES—Assessment of—Only matters properly pleaded and proven can be allowed—Defence not taking issue on pleadings, evidence led at trial and accept damages up to a certain level—Consequence of—Court can award damages not contested.

4 Coecon Ltd v The National Fisheries Authority of Papua New Guinea (2002) N2182, PNGBC v Jeff Tole (2002) SC694, Ome Ome Forests Ltd v Ray Cheong (2002) N2289, Peter Aigilo v The Independent State of Papua New Guinea (2001) N2102, John Yama v The Independent State of Papua New Guinea (2002) N2198, Kolaip Palapi v Independent State of Papua New Guinea (2001) N2274, The Independent State of Papua New Guinea v Kofowei [1987] PNGLR 5, Abel Tomba v The Independent State of Papua New Guinea (1997) SC518, Application by Kunzi Waso [1996] PNGLR 218, Motor Vehicles Insurance (PNG) Trust v John Etape [1995] PNGLR 214 (Edit: Unclear whether MVIT v John Etape [1994] PNGLR 596 or MVIT v Salio Tabanto [1995] PNGLR 214 is the correct reference), MVIT v Pupune [1993] PNGLR 370, Repas Waima v MVIT [1992] PNGLR 254, Collins v MVIT [1990] PNGLR 580, Dawa Yomi v The Independent State of Papua New Guinea (1990) N823, Woma Paul v Anton Kare [1988] PNGLR 276, Helen Bia Sam v Paul Haurom [1998] PNGLR 346, Tony Wemin v The Independent State of Papua New Guinea (2001) N2134, John Tuink Salamon v The Independent State of Papua New Guinea [1994] PNGLR 265, Toglai Apa v The Independent State of Papua New Guinea [1995] PNGLR 43, David Haluya v Independent State of Papua New Guinea (2001) N2109 referred to

___________________________

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 58 OF 2002

DESMOND HUAIMBUKIE

MARCUS HUAIMBUKIE

STANIS WAFI MAIRANGIAN

PATRICK SAIHIRA

HUBERT MAKES

MALAKI YENU

ELPHIN YENU &

SAIHENGUI HARINDUO

Plaintiffs

AND:

JAMES BAUGEN

as Station Commander of Yangoru Rural Police Station

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

WAIGANI: KANDAKASI, J.

2003: 12th November

2004: 16th of July

PRACTICE & PROCEDURE – Pleadings – Plaintiff failing to properly plead his loss and damages – Defence failing to take appropriate objection – Effect of – Court can award damages up to amounts conceded by the defence.

LAW OF TORTS – Unlawful police raid – Destruction to houses and other properties - Whether action within the course of duty and furthering interest of the State – Whether State vicariously liable for unlawful acts of police – No arguments raised against liability – Consequence of – Award of damages not contested.

DAMAGES – Assessment of – Only matters properly pleaded and proven can be allowed – Defence not taking issue on pleadings, evidence led at trial and accept damages up to a certain level – Consequence of – Court can award damages not contested.

Cases Cited:

Coecon Limited (Receiver/Manager Appointed) v. The National Fisheries Authority of Papua New Guinea and The Independent State of Papua New Guinea (28/02/02) N2182.

Papua New Guinea Banking Corporation (PNGBC) v. Jeff Tole (27/09/02) SC694.

Andrew Daiva and Ome Ome Forests Ltd v. Lawrance Pukali & Anor; Ome Ome Forests Ltd v. Ray Cheong & Ors (08/10/02) N2289.

Peter Aigilo v. The Independent State of Papua New Guinea & Ors (unreported judgment) N2102.

Tony Wemin & Ors v. The Independent State of Papua New Guinea (21/06/01) N2134.

John Yama v. The Independent State of Papua New Guinea (17/05/02) N2198.

Kolaip Palapi v Independent State of Papua New Guinea (05/06/01) N2274.

The Independent State of Papua New Guinea v. David Wari Kofowei& Ors [1987] PNGLR 5. Abel Tomba v. The Independent State of Papua New Guinea (07/04/97) SC518.

In the Application by Kunzi Waso [1996] PNGLR 218.

Motor Vehicles Insurance (PNG) Trust v. John Etape [1995] PNGLR 214.

Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370.

Repas Waima v. Motor Vehicles Insurance Trust [1992] PNGLR 254.

Carmelita Mary collins v. Motor Vehicles (PNG) Insurance Trust [1990] PNGLR 580.

Dawa Yomi v. The State (19/03/90) N823.

Woma Paul an infant by next friend Dan Paul v. Anton Kare & The Independent State of Papua New Guinea [1988] PNGLR 276.

Bia Sam –v- Paul Hauram, Henry Tokam & The State [1998] PNGLR 246.

Tony Wemin & 227 Ors v. Robert Kalasim, Provincial Police Commander of Simbu & The State (21/06/01) N2134.

John Tuin Solomon v. The State and Others [1994] PNGLR 265.

Toglai Apa & Others v. The State N1267.

David Haluya –v- Samson Gurel & The State N2109.

Counsel:

L. Manua for the Plaintiffs.

M. Kua for the Defendants.

16th July 2004

KANDAKASI, J: The Plaintiffs are claiming damages, interest and costs arising out of a police raid resulting in destruction to property, assault and battery, unlawful detention and breaches of their Constitutional rights. The acts were allegedly committed by members of the police force based at Yangoru Rural Police Station in East Sepik Province on 12th December 2001.

Liability

An entry of default judgment against the Defendants on 7th August 2002, resolved the liability in favour of the Plaintiffs. The default judgment was in default of the Defendants Notice of Intention to Defend and Defence. Hence, the matter came before me for an assessment of damages on 12th November 2003. At that time, I was taking care of three different lists, two civil trial lists and the Motions Court due to the unavailability of the other judges. This meant I could not hear and quickly determine the cases then listed before. I therefore only heard and reserved judgments to a date when I am ready. I have delivered some of the judgments in that category already. Today I am ready with the decision in this matter.

The legal principles governing the assessment of damages following the entry of default judgment is clear. I summarized them in my judgment in Coecon Limited (Receiver/Manager Appointed) v. The National Fisheries Authority of Papua New Guinea and The Independent State of Papua New Guinea (28/02/02) N2182, in these terms:

“A survey of the authorities on assessment of damages after entry of judgment on liability mainly in default of a defendant’s defence, clearly show the following:

1. The judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim.

2. Any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability.

3. In the case of a claim for damages for breach of contract as in this case, such a judgment confirms there being a breach as alleged and leaves only the question of what damages necessarily flow from the breach.

4. The plaintiff in such a case has the burden to produce admissible and credible evidence of his alleged damages and if the Court is satisfied on the balance of probabilities that the damages have been incurred, awards can be made for the proven damages.

5. A plaintiff...