Eriare Lanyat (WS No 76/93), Henry James Tamarua (WS No 104/93), Kapate Stanford and 30 Others (WS No 106/93) and Naiven Yato and 9 Others (WS No 107/93) v George Wagulo and The Independent State of Papua New Guinea [1997] PNGLR 253

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 24 October 1996
• Court: National Court
• Citation: [1997] PNGLR 253
• Year: 1997
• Judgement Number: N1481

Full Title: Eriare Lanyat (WS No 76/93), Henry James Tamarua (WS No 104/93), Kapate Stanford and 30 Others (WS No 106/93) and Naiven Yato and 9 Others (WS No 107/93) v George Wagulo and The Independent State of Papua New Guinea [1997] PNGLR 253

National Court: Injia J

Judgment Delivered: 24 October 1996

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 76/93, WS NO 104/93, WS NO 106/93 & WS NO 107/93

BETWEEN

ERIARE LANYAT (WS NO. 76/93) — PLAINTIFF

BETWEEN

HENRY JAMES TAMARUA (WS NO. 104/93) — PLAINTIFF

BETWEEN

KAPATE STANFORD & 30 ORS (WS NO. 106/93) — PLAINTIFFS

BETWEEN

NAIVEN YATO & 9 ORS (WS NO. 107/93) — PLAINTIFFS

AND

GEORGE WAGULO — FIRST DEFENDANT

AND

THE STATE — SECOND DEFENDANT

Mount Hagen

Injia J

6 March 1996

15 April 1996

18 April 1996

24 October 1996

VICARIOUS LIABILITY — of State for torts committed by policemen — Wanton destruction to properties of warring clansmen whilst war in progress — Whether State vicariously liable — Wrongs Act (Ch 295), S. 1 (4).

Held

(1) Pursuant to S. 1 (4) of the Wrongs Act Ch No 295, the State is only liable for torts committed by policemen in the course of performing their functions "as if the functions had been solely conferred or imposed by virtue of instructions lawfully given by the Government".

(2) In a tribal fight situation, the policemen were lawfully authorised to stop the war and restore peace and the modus operandi options to perform their job would have been left to the policemen on the field to determine. The categories of modus operandi options may be never closed.

(3) In order for the State to exonerate itself from vicarious liability, the onus is on the State to produce evidence showing that the modus operandi employed by the policemen on the field would not have been or was not lawfully authorised by the State.

(4) In the circumstances of this case, the onus was not discharged by the State and the State was held vicariously liable for the destruction of property by unidentified policemen committed in the course of stopping the warring clansmen.

Cases Cited

David Wari Kofewi v Augustine Siviri & Ors [1987] PNGLR 5

Nogo Suzuke & Anor v The State Unpublished judgment of Injia J dated 21 June 1996 delivered in Mount Hagen (WS 951/94 (H) )

Counsel

P Dowa for the Plaintiffs

M Pokia for the Defendants

24 October 1996

INJIA J: All these claims arise out of the same police raid allegedly conducted on 3 August 1992 at Sirunki village, Laiagam in the Enga Province. Although the claims were filed separately, they were heard together. The evidence of witnesses in some of the matters were relied on by the Plaintiffs in other matters whilst the Defendants called the same witnesses for all these matters. And whilst the Plaintiffs filed separate written submissions in respect of each mater, the Defendants filed joint written submissions in respect of some of the matters. In the circumstances, I have decided to deal with all these matters together. Both issues of liability and quantum of damages were disputed by the Defendants and a trial was conducted.

WS NO 76/93 LANYAT V WAGULO & STATE

This Plaintiff is a man aged 30 years old from Sirunki village. He claims in the Writ that on 3/8/92, unidentified policemen based at Wabag led by their Officer-In-Charge, the First Defendant, conducted a raid at Sirunki village and unlawfully destroyed his trade store building including stock, cash, tools and beddings. He claims he also lost a residential house and 3 pigs. It is necessary to set out in full the pleadings:

Statement of Claim

1. The Plaintiff aged about 30 years was at all material times owner of a trade store and conducting business in the Surinki area of the Enga Province.

2. At all material times the First Defendant was employed by the Police Department and attached to the Wabag Police Station as its Provincial Police Station Commander and as such was a servant and or agent of the Second Defendant.

3. On Monday 3rd August 1992 at Surinki, Laiagam in the Enga Province the First Defendant as Commanding Officer approved, ordered, permitted or otherwise led an unspecified number of policemen all attached to the Wabag Police Station and under his immediate supervision entered the Plaintiff's premises and committed the following trespasses:

Particulars of Trespass

The said policemen destroyed the Plaintiff's trade store building and other stuff by burning down same to the ground with stock, cash, tools and beddings.

4. As a result of the unlawful actions referred to above, the Plaintiff suffered loss and damage.

PARTICULARS OF ITEMS LOST

Items ListValue for Item Lost1.Trade StoreK15,000.002.Trade Store GoodsK10,000.003.6 x Fertiliser Bags @ K25.00K150.004.Vacuum Pump Double StateK1,500.005.GeneratorK1,800.006.2 x 2 Boxes (electrical) K1,500.007.House (residence) K5,200.008.Beds, Blankets, tools and etc.K600.009.3 x pigs @ K700.00, K600.00 and K600.00K1,900.00Total:K37,650.005. The Plaintiff in seeking damages for the loss he suffered is instituting the proceedings pursuant to the provisions of the Wrongs (Miscellaneous Provisions) Act Chapter No 297 and Claims By and Against the State Act Chapter No 30.

6. And the Plaintiff claims:

(a) General Damages;

(b) Exemplary Damages;

(c) Interest and Cost.

To the above Writ, the Defendant in their joint Defence pleaded:

1. The Defendants do not know and therefore cannot admit paragraph 1 of the Statement of Claim.

2. The Defendant admit paragraph 2 of the Statement of Claim.

3. Save that the police attached to the Wabag Police Station went to Surinki, Laiagam, Enga Province on the 3rd August 1992 the Defendants deny each and every particulars of trespass as pleaded in paragraph 3 of the Statement of Claim.

4. Any destruction of the properties of Riare Layat were not caused by the policemen but rather by the foes of the people involved in the tribal fight.

5. The Defendants deny paragraph 4 of the Statement of Claim and say that it was not the Defendants, their servants, agents or employees who have destroyed, if there was such destruction, the properties of Riare Layat as particularised in paragraph 4 of the Statement of Claim. The Defendants therefore repeat paragraph 4 of this Defence.

6. As to paragraph 5 of the Statement of Claim the Defendants say that the Plaintiff is not entitled to seek damages under the Wrongs (Miscellaneous Provisions) Act Ch No 297 and the Claim By and Against the State Act Ch No 30.

7. As to paragraph 6 of the Statement of Claim the Defendants say that in law the Plaintiff is not and cannot claim general damages, exemplary damages, interest and cost.

The evidence from the Plaintiff comprise of the affidavit of the Plaintiff filed on 21/2/96, the affidavit of Pastor Yapata Yoko filed 21/2/96 and the affidavit of the Plaintiff's lawyer Paulus M Dowa filed 21/2/96 to which is annexed a copy of the relevant Coroner's report of Magistrate Patrick Nasa. In addition, the Plaintiff was cross-examined on his affidavit. In his written submission, the Plaintiffs' lawyer says the Plaintiff also relies on the affidavits of George Pyati, Peter Peaete, Peter Simon and affidavits filed in the other matters. However, no leave was sought to rely on those affidavits in the trial and they cannot be available to the Plaintiffs.

To counter this evidence, the Defendant called S/Const. Robert Burner who was a member of the police party headed by Sgt. Wagulo. He also filed an affidavit sworn on 11/3/96 and a further sworn statement dated 16 August 1993 which the defence relied upon.

I will deal with the issue of liability and quantum separately.

LIABILITY

The only evidence from the Plaintiff in his affidavit on the raid is that appearing on para. 3 where he says "on Monday 3rd August 1992 a member of policemen entered my village and set fire to the buildings, trade stores, looted store goods, killed pigs and even shot dead 4 youths". In para. 4 of his affidavit, he sets out a list of items he lost and their value. In para. 18 of his affidavit, he says "as a result of the unlawful actions on the part of the police personnel, I lost the property described above to the total value of K37,650.00".

In his oral evidence given under cross-examination and re-examination, he said that he is a member of the Malya clan of Kunalin tribe. Sometimes before the 2/8/92, there was a killing of a young man of the Kunalin tribe. As a result, the Koane clan and the Kii clan of the Kunalin tribe went to war. His clan was not involved in the war. The war started at Tambitanis village on Sunday 2/8/93 and spread out to the area where the Police Station is. The war continued to Monday 3/8/96. As a result,...