James G Koimo v The Independent State of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 31 May 1995
• Citation: [1995] PNGLR 535
• Court: National Court
• Year: 1995
• Judgement Number: N1322

National Court: Injia J

Judgment Delivered: 31 May 1995

N1322

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JAMES G KOIMO

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen

Injia J

16 January 1995

31 May 1995

DAMAGES — Exemplary damages — Police raid on village and illegal search of village — Seizure of property — Circumstances in which exemplary damages should be awarded — Measure of damages.

CONSTITUTIONAL LAW — Infringement of rights by police — Constitution sections 44, 49, 53, 57 and 58 — Whether damages for infringement of constitutional rights should be awarded in addition to compensatory damages for the same acts.

CONSTITUTIONAL LAW — Practice and procedure — Constitution s 185 — Formulation of rules relating to onus of proof and standard of proof on award of damages for infringement of rights.

WORDS AND PHRASES — "Exemplary damages"; "genuine belief".

Facts

The plaintiff claimed damages on behalf of himself and 27 others for an illegal search and raid conducted by police on the plaintiff's village when police entered the village, fired shots, burnt down houses and their contents, shot and killed livestock, and carried away the personal property of the plaintiff and others. The defendant failed to defend the proceedings, and a default judgment for damages to be assessed was entered by the plaintiff.

Held

1. Where the violation of constitutional rights alleged is based on the same acts for which compensatory damages are awarded, the compensatory damages extend to the alleged violation of rights. No separate award should be made for the violation of rights since this would amount to unjust enrichment of the plaintiff.

2. The principles applying to an award of exemplary damages for the acts of police in carrying out raids on villages must rest on a different footing to principles applicable to assaults by police and prison officers on persons in custody.

3. The reasoning that, in general, awards of exemplary damages should not be made against the State, as opposed to awards made against individual police officers, unless there is evidence to show that the State sanctioned the raids in some form, such as under a direction or pursuant to a policy, is too restrictive.

4. A restrictive approach should not be followed in awarding exemplary damages based on vicarius liability where there has been a violation of constitutional rights. In situations involving the acts of servants of the State, exemplary damages are awarded at common law where the action is oppressive, arbitrary, or unconstitutional. An award of exemplary damages serves to show the disapproval of the Court and the indignation of the public at the oppressive action of the servants of the State, requires that the State take appropriate remedial action, and adversely affects the reputation of the State.

5. Sections 57 and 58 of the Constitution, in providing for damages to be awarded for breach of constitutional rights, do not provide for the practice and procedure to be followed. The following procedures, made under s 185 of the Constitution should be followed in claims for damages for infringement of constitutional rights, in particular in claims for exemplary damages:

(a) The person claiming bears the burden of proving a prima facie breach of a constitutional right.

(b) The burden is to be discharged on the balance of probabilities. Where the claim is based on the acts of police, the person claiming must produce some credible evidence of the alleged infringement of rights and, where exemplary damages are claimed, evidence that the acts of police were oppressive, arbitrary, or unconstitutional. The person claiming need not show that a police raid was officially sanctioned or conducted or directed under the official policy of the State, as this information would be confidential and known only to the State and its servants.

(c) The onus is then on the State to show that the acts of its servants were reasonably necessary or justified in the circumstances of a particular case or, where the action complained of was taken pursuant to a discretion conferred by law, were justified or required by law. The burden on the State is a heavy one.

(d) The Court will determine issues of liability and damages as in a civil case, but with due regard to (a) (b) and (c).

6. An assessment of exemplary damages in cases involving police raids on villages must take account of the nature and scale of the police operation and the extent of the destruction or loss of property.

Papua New Guinea cases cited

Amaiu v Commissioner of Corrective Institutions [1983] PNGLR 87.

Apa v PNG [1995] PNGLR 43.

Doa v PNG (1993) unreported, unnumbered NC.

Kofowei v Siviri [1983] PNGLR 449.

Kopi v PNG [1994] PNGLR 475.

Kuriti v PNG [1994] PNGLR 262.

Maimel v PNG (1993) unreported, unnumbered NC.

Mase v PNG (1994) unreported, unnumbered NC.

Pauta v Commissioner of Corrective Institutions [1982] PNGLR 7.

PNG v Kofowei [1987] PNGLR 5.

Re Conditions at Buimo Corrective Institution [1988-89] PNGLR 266.

Salamon v PNG [1994] PNGLR 265.

SCR No 2 of 1982 [1982] PNGLR 214.

State v Quati [1990] PNGLR 57.

Other case cited

Rookes v Barnard [1964] AC 1129; [1964] 1 All ER 367; [1964] 2 WLR 269.

Counsel:

P Kopunye, for the plaintiff.

No appearance for the defendant.

31 May 1995

INJIA J.: The plaintiff sues for and on behalf of himself and 27 other plaintiffs pursuant to Authority to Act filed on 25 February 1995. Liability is not disputed, as there is a default judgment against the defendant ordered on 25 March 1994. This is an undefended trial on assessment of damages.

The plaintiff's claim for damages arises from an illegal search and raid conducted by certain unidentified policemen in a combined police operation involving policemen from Minj Police Station, Nondugl Police Station, and Mount Hagen Police Station at Konmal village on 13 July 1992. The raid followed an armed robbery on the Okuk Highway some days earlier. Armed policemen converged at Konmal village in the early morning, fronted up at the doorsteps of the dwelling houses, fired shots into the air and, after scaring away the occupants, indiscriminately burnt down houses together with their contents, shot and killed livestock such as pigs and took others away, and carried out general destruction of the plaintiffs' food gardens and other personal belongings. Oral evidence of the raid was given by James Koimo, Ben Binja, Peter Gele, and Caspar Kiye. Photographs of burnt down houses were also tendered. The evidence of James Koimo is impressive. He is an experienced rural development officer with the Department of Pimary Industry for some 23 years and currently employed as a Field Development Manager with the Coffee Industry Corporation. He took stock of all the properties lost or destroyed and allocated a monetary value to each item. As for the economic value of cash crops and trees, he used the Department of Primary Industry price list formulated on 19 October 1988, which is currently in use. I have carefully checked the estimated values and consider them to be fair and reasonable. The plaintiff's lawyer has calculated the total value of the properties at K37,312.18, which is apportioned between 28 plaintiffs, including Mr Koimo. I accept his calculations. I award general special damages in the total sum of K37,312.18. I also award 8% interest on the K37,312.18, from the date of commencement of the proceedings, which is 14 December 1993, to the date of judgment.

The plaintiff also seeks separate damages for violation of constitutional rights and exemplary damages pursuant to Constitution s 58 (2). I will first deal with violation of constitutional rights. The plaintiff identifies the constitutional rights violated as freedom from arbitrary search and entry (Constitution s 44) and right to privacy (Constitution s 49). To those, I would add protection from unjust deprivation of property (Constitution s 53). In support, Mr Kopunye cites various cases, including Kofowei v Siviri [1983] PNGLR 449; Amaiu v Commissioner of Corrective Institutions [1983] PNGLR 87, and Pauta v Commissioner of Corrective Institutions [1982] PNGLR 7.

The evidence is that the illegal search was conducted on the same properties or houses before they were burnt or destroyed. This evidence is consistent with paragraphs 6 and 7 of the statement of claim, where the plaintiff alleged that the "method of the said raid and search were by indiscriminately burning down of houses together with the contents, shooting and killing of live stocks taking custody of live stock and general destruction of properties of the plaintiff (s) ". I have already made an award for compensatory damages for loss and destruction of property in the sum of K37,312.18. That compensation should also cover violation of constitutional rights under ss 44, 49, and 53, because these violations were committed in the same act. The illegal search and invasion of...