Thomas Paraka v Thomas Upaiga and The Independent State of Papua New Guinea (2010) N4090

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 14 July 2010
• Court: National Court
• Citation: (2010) N4090
• Docket Number: WS NO 799 OF 1999
• Year: 2010
• Judgement Number: N4090

Full Title: WS NO 799 OF 1999; Thomas Paraka v Thomas Upaiga and The Independent State of Papua New Guinea (2010) N4090

National Court: Makail, J

Judgment Delivered: 14 July 2010

N4090

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 799 OF 1999

BETWEEN

THOMAS PARAKA

Plaintiff

AND

THOMAS UPAIGA

First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Mount Hagen: Makail, J

2010: 11th May & 14th July

TRESPASS - Liability - Police raid - Destruction and looting of properties - Policemen acting within scope of duty - Liability of State, its servants and agents - Vicarious liability - Wrongs (Miscellaneous Provisions) Act, Ch 297 - Section 1.

REAL PROPERTY - Property dispute - State lease - Grant of title - Proof of - Evidence of - Lack of - Effect of.

DAMAGES - No title to property at time of illegal police raids - Illegal occupation of property - Apportionment or reduction of damages.

Cases cited:

Peter Wanis -v- Fred Sikiot & The State (1995) N1350

Anis Kewa -v- Desmond Kami & The State (2010) N3899

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

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

Robert Taropen & Ors -v- John Anawe & The State: WS No 1166 of 2004 (Unnumbered & Unreported Judgment of 08th March 2010)

Nelson Pawa -v- Linus Yumbun, OIC Porgera Police Station & The State (2009) N3784

James Liwa & Peter Kuriti & Markus Vanimo & The State (2008) N3486

Counsel:

Mr P Kunai, for Plaintiff

No appearance for Defendants

JUDGMENT

14th July 2010

1. MAKAIL, J: This is matter came for ex-parte trial on liability and assessment of damages on 11th May 2010 after Mr Waliyo Mapsio of the Solicitor General’s office failed to appear at trial despite being aware of the date for trial. The claim arose from four separate incidents of alleged unlawful police raids at the premises of the plaintiff at Warakum in Mt Hagen on 14th August 1998, 15th August 1998, 23rd September 1998 and 11th October 1998 by unidentified members of the police force led by the first defendant. The plaintiff alleged that as a result of the unlawful police raids, he lost various house items including severe damage to his motor vehicles, the first a Mitsubishi Canter truck bearing registration No HAI-903 and the other, a Toyota Dyna truck, bearing registration No P-327R. The defendants denied the claim.

Liability

2. As the defendants had denied the claim, the first issue for determination is liability. In his affidavit sworn on 28th July 2004 and filed on 17th August 2004, (exhibit “P1”), the plaintiff deposed that he is the registered proprietor of the property described as section 49, allotment 73, Mt Hagen and annexed as annexure “A”, a copy of the title deed to verify his assertion. From the title deed, it is noted that the property is on State land (State lease - Volume 186, Folio 224) and the transfer and registration of title in the plaintiff’s name was effected on 30th December 2002, a worthy and important point to note here as I will return to comment on it later.

He further deposed that policemen acting under the command and control of the first defendant entered his premises on four different occasions and carried out the raids. They were conducted on:

* 14th August 1998,

* 15th August 1998,

* 23rd September 1998, and

* 11th October 1998.

3. On each occasion, the first defendant went with a group of unidentified policemen in a police vehicle described as a Toyota land-cruiser, bearing registration no ZGV-203 and used it to transport some of the properties that they removed from his premises. At paragraph 4 of his affidavit, he outlined the details of the properties that were damaged, destroyed and/ or removed from the premises ranging from household items like mattresses, cooking utensils, radio, deep fridge, video deck to water tank, louvers, door and coffee pulper. He gave a total figure of K45,385.26 as the total value of the properties destroyed and/ or looted by the first defendant and his policemen.

4. At paragraph 5 of his affidavit, he further deposed that the first defendant and his policemen damaged two of his motor vehicles. One of the motor vehicles was a Toyota Dyna, bearing registration No P-327R and the other, a Mitsubishi Canter truck, bearing registration No HAE-903. The first defendant and his policemen damaged the Toyota Dyna’s windscreen, bumper bar, mirrors, head and signal lights, doors, side door glasses and many others. He gave a figure of K14,860.63 as the value of the damage. As for the Mitsubishi Canter truck, they damaged the front bumper, windscreen, doors, rear glass, side door glasses, back tray, head and signal lights and many others. He gave a figure of K24,178.04 as the value of damage.

5. To verify the damage of these motor vehicles, he produced two photographs, one for the Mitsubishi Canter truck (exhibit “P4”) and the other for the Toyota Dyna truck, (exhibit “P5”). It is noted here that the photographs showed that the motor vehicles were severely damaged. He further deposed at paragraph 6 of his affidavit that, as these motor vehicles were used for PMV business, he lost profit of K14,400.00 for the Mitsubishi Canter truck and K110,822.93 for the Toyota Dyna.

6. Two other witnesses gave evidence to verify his claim that the first defendant and a group of unidentified policemen raided his premises. Both were eyewitnesses of the raids at four different occasions. On each occasion, they saw the first defendant and his policemen damaged and/ or removed the plaintiff’s properties. The first one was on 14th August 1998, the second on 15th August 1998, the third on 23rd September 1998 and the final on 11th October 1998. These two witnesses were Makop Tepoka who swore an affidavit to that effect on 06th October 2004 and had it filed on 21st October 2004, (exhibit “P2”) and Namba Jip who also swore an affidavit to that effect on 06th October 2004 and had it filed on 21st October 2004, (exhibit “P3”).

7. The defendants filed a defence on 16th February 2000. It is noted, in their defence, they admitted that the first defendant and a group of unidentified policemen entered the plaintiff’s premises but denied that their entry was illegal. They further alleged they entered it following a complaint from one Tombo Kawa who alleged that, the plaintiff was illegally occupying the property. Secondly, the plaintiff was arrested, charged and convicted by the District Court for unlawfully on premises. Thirdly, they entered the property on two occasions, one on 14th August 1998 and the other on 23rd September 1998 and not on four occasions as alleged by the plaintiff. Finally, on those occasions, they did not damage and/ or loot any of the plaintiff’s property. However, they did not call evidence either orally or by affidavits to establish their defence.

8. Be that as it may, in my view, the defence raised a very important matter and that is, there appears to be a dispute in relation to the property which the plaintiff occupied at the time of the alleged raids by the first defendant and his policemen. The defendants alleged in their defence that they acted on a complaint of one Tombo Kawa to enter and evict the plaintiff from the property. They also alleged that the plaintiff was arrested, charged and convicted by the District Court for unlawfully on premises. In my view, the defence raises the question of whether the plaintiff was the legal occupant of the property whether through a tenancy agreement or as the registered proprietor. As the defendants have challenged the plaintiff’s right of occupation of the property, the onus then shifts to the plaintiff to prove his right of occupation of the property.

9. Where is his evidence that he was lawfully occupying the property at the material times? This is where I return to what I alluded to earlier, and that is, the plaintiff deposed that he is the registered proprietor of the property and annexed as annexure “A” a copy of the title deed to verify his assertion. From the title deed, it is noted that the transfer and registration of title in his name was effected on 30th December 2002. If the grant of title was made on 30th December 2002, and the alleged raids took place between August and October 1998, how can he say that he was the registered proprietor of the property in 1998? It is obvious to me that he was not the registered proprietor of the property in 1998 because the title of the property was transferred and registered in his name on 30th December 2002, some four years later.

10. The first inference drawn from the defendants’ defence and evidence of the plaintiff is that, he was illegally occupying the property. He had no right to remain on it and that may have been the reason for the policemen led by the first defendant to enter and evict him from it. The second inference is, the first defendant and his policemen had a legitimate reason to enter and evict him from the property because he was an illegal occupant. Whether they damaged, destroyed and/ or looted his properties during the eviction is another matter which I will come to discussing in a moment. But for now, I find that the plaintiff was an illegal occupant of the property and partly contributed to his loss by illegally occupying the property at the material times.

11. I now turn to the second issue and that is, did the first defendant...