Members of Pyain Tribe consisting of Robert Taropen, Max Passomb, Wapen Lais, Steven Kuima, Las Mas, Peter Goroka, Arnold John, Howape Yaluma, Maki Talum, Manus Lyakae & Lasen Mas v John Anawe, Provincial Police Commander of Enga Province and Sam Inguba, Commissioner of Police and The Independent State of Papua New Guinea (2010) N3911

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 08 March 2010
• Docket Number: WS NO 1166 OF 2004
• Court: National Court
• Judgement Number: N3911

Full Title: WS NO 1166 OF 2004; Members of Pyain Tribe consisting of Robert Taropen, Max Passomb, Wapen Lais, Steven Kuima, Las Mas, Peter Goroka, Arnold John, Howape Yaluma, Maki Talum, Manus Lyakae & Lasen Mas v John Anawe, Provincial Police Commander of Enga Province and Sam Inguba, Commissioner of Police and The Independent State of Papua New Guinea (2010) N3911

National Court: Makail, J

Judgment Delivered: 8 March 2010

N3911

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1166 OF 2004

BETWEEN

MEMBERS OF PYAIN TRIBE consisting of ROBERT TAROPEN, MAX PASSOMB, WAPEN LAIS, STEVEN KUIMA, LAS MAS, PETER GOROKA, ARNOLD JOHN, HOWAPE YALUMA, MAKI TALUM, MANUS LYAKAE & LASEN MAS

Plaintiffs

AND

JOHN ANAWE, PROVINCIAL POLICE COMMANDER

OF ENGA PROVINCE

First Defendant

AND

SAM INGUBA, COMMISSIONER OF POLICE

Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Mount Hagen: Makail, J

2009: 18th June &

2010: 8th March

DAMAGES - Assessment of - Unlawful police raid - Destruction and looting of property - Proof of - Breaches of constitutional rights - Freedom from arbitrary search and entry - Freedom from inhuman treatment - Deprivation of liberty - Deprivation of property - Constitution - Sections 42, 44, 53, 57 & 58.

Cases cited:

Aimon Aure & Ors -v- The State [1996] PNGLR 85; (1995) N1346

Tabie Mathias Koim -v- The State [1998] PNGLR 247; (1998) N1737

Abel Tomba -v- The State (1997) SC518

Nelson Pawa -v- Linus Yumbun & The State (2009) N3784

Kawi Yawi -v- Torepa Nenga, Anton Sinawai & The State (2002) N2209

James Gunambo & Anor -v- Sergeant Thomas John Upaiga & The State: WS No 1321 of 2002 (Unnumbered & Unreported Judgment of 25th January 2010)

Counsel:

Mr P Dowa, for the Plaintiffs

Ms T Tupou, for Defendants

JUDGMENT

08th March, 2009

1. MAKAIL, J: In this action, the eleven plaintiffs are villagers from Pyain tribe of Laiagam in the Enga Province and are suing the defendants for damages arising from an alleged unlawful raid by members of the police at their village on 14th August 2003. They alleged that the members of the police under the command and control of the first defendant destroyed and looted their property and livestock of various descriptions and as a result, they suffered loss. They placed a monetary value of K29,409.20 in the writ of summons filed on 03rd September 2004 and seek general damages, exemplary damages, special damages, legal costs and interest. The defendants had not denied the claim and default judgment was entered against them with damages to be assessed on 21st August 2007. Hence, trial was conducted on assessment of damages.

2. At the trial, counsel for the plaintiffs abandoned the claim for plaintiffs Arnold John, Howape Yaluma, Maki Talum, Manus Lyakae and Lasen Mas because none of them had filed affidavits or were available to give oral evidence and pursued the claim for the remaining six plaintiffs Robert Taropen, Max Passomb, Wapen Lais, Steven Kuima, Peter Goroka and Las Mas. In support of the claim, the plaintiffs relied upon the following affidavits which were admitted into evidence by consent:

1. Affidavit of Robert Taropen sworn and filed on 21st July 2008, (exhibit “P1”);

2. Affidavit of Wapen Lais sworn and filed on 24th July 2008, (exhibit “P2”);

3. Affidavit of Max Passomb sworn and filed on 24th July 2008, (exhibit “P3”);

4. Affidavit of Peter Goroka sworn and filed on 24th July 2008, (exhibit “P4”);

5. Affidavit of Las Mas sworn and filed on 24th July 2008, (exhibit “P5”); and

6. Affidavit of Steven Kuima sworn and filed on 24th July 2008, (exhibit “P6”).

3. The defendants had offered no evidence in rebuttal and elected not to cross examine the plaintiffs in relation to the contents of their affidavits. Briefly, the evidence of the plaintiffs is that, on 14th August 2003, members of the police from the Kerowagi, Mt Hagen, Wabag and Laiagam Mobile Squads armed with firearms, entered their village at Mamale in Laiagam, Enga Province and broke into their houses and trade stores and destroyed property of various descriptions and even looted them. The description of the property destroyed and looted were clothes, sleeping gears, eating utensils, gardening tools, generators, store goods and cash money. They also arrested and detained plaintiffs Max Passomb, Arnold John, Peter Goroka and Steven Kuima, for 10 days at Wabag Police Station cell without charging them with any offence and later released them.

General damages

4. The plaintiffs claimed general damages. Given that general damages is intended to compensate a plaintiff for pain and suffering and loss of amenities caused by the wrongful conduct of a defendant, in the present case, I am satisfied that the actions of the members of the police have put the plaintiffs through a great deal of pain and suffering and loss of amenities because the plaintiffs had essentially lost the basic human needs in life for survival; shelter (houses), sleeping gears and cooking utensils. Without them, life will be miserable and not worth living, hence I have no difficulty in finding that they had suffered at the hands of the members of the police. In my view, they ought to be compensated by an award of general damages. I shall deal with each plaintiff below:

Robert Taropen

5. This plaintiff lost the following personal items:

1. 1 x Suit case K 400.00

2. 1 x Coleman lamp K 280.00

3. 1 x Brand new axe K 87.00

4. 1 x Bush knife K 20.00

5. 2 Dishes K 46.00

6. Cash K16,000.00

7. 1 Generator K 3,000.00

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Total K19,833.00

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6. I have considered the value of each item and in my view they seemed reasonable and relatively modest. But there is one item which I am not satisfied with and that is item 6 - cash of K16,000.00. Whilst he stated at paragraph 9 of his affidavit that he used that money to conduct his business, he does not give the specific details or nature of his business. A Court of law would not accept this kind of evidence as in my view, that evidence is vague. The amount is huge and the Court cannot accept bare assertions of such loss. In the case of Aimon Aure & Ors -v- The State [1996] PNGLR 85; (1995) N1346, a case of unlawful raid by members of the police and defence force which resulted in loss of several personal items including allegations of theft of huge amounts of cash, Woods, J said that:

“This Court cannot accept bare assertions of such loss. First it is not prudent practice to keep large amounts of cash in one’s home and anyone who does that does so at their own risk. Also large amounts of cash suggest an income, which could be liable for tax and therefore the Court, must require the appropriate evidence of how such large amounts of cash were obtained and of compliance with tax laws. So couple with instances where large amounts of cash are claimed this court cannot accept that claim without appropriate evidence to support the holding of such amounts of cash.”

8. In Tabie Mathias Koim -v- The State [1998] PNGLR 247; (1998) N1737, the plaintiff maintained loosing K750.00 of his own money and his father losing K9,000.00 in a police raid but was not sure whether it was stolen by police or burnt. He did not positively assert a claim for these monies. Injia, J (as he then was) declined an award for the missing cash. For these reasons, I am not satisfied that he had lost K16,000.00 during the raid. I make no award for this claim but shall award K3,833.00 as general damages for the other personal items destroyed and looted by the members of the police.

Wapen Lais

9. This plaintiff lost the following personal items:

1. 10 x Cambridge packets @ K60.00 each K 600.00

2. 4 x Highway beef biscuit cartons @ K55.00 each K 220.00

3. 4 x Liklik wopa biscuit cartons @ K54.00 each K 216.00

4. 3 x Globe tin meat cartons @ K54.00 each K 162.00

5. Cash K 460.00

6. 2 x PK Packets @ K15.00 each K 30.00

7. 10 x Gas/match @ K1.00 each K 10.00

8. 8 x Coca cola cartons @ K38.40 K 307.20

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Total K 2,005.20

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10. This plaintiff owned a trade store and lost the above items during the raid. The value of each item seemed reasonable in light of the kind of trade store goods one would purchase from a wholesaler and sell as a retailer. I am satisfied that I should award general damages in the sum of K 2,005.20 inclusive of the cash of K460.00. I am awarding K460.00 because I am also satisfied that it was money earned from sale of goods and held in the trade store as cash on hand. I award K 2,005.20 as general damages for this plaintiff.

Max Passomb

11. This plaintiff lost the following personal items:

1. 2 x Traveling bags containing clothes K 300.00

2. 1 x Suitcase with clothes K 500.00

3. Pair of Dunlop and Stockman shoes K 400.00

4. 2 x Axes, 2 Bush knives, a hammer and a hand sawK 500.00

5. Set of mechanical tools K 2,000.00

6. 1 x Brand new sonny radio K 800.00

7. Eating utensils, furniture like chairs & tables K 800.00

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