Toglai Apa and Bomai Siune, on their own behalf and as representative of about 31 other members of the Okondie Clan, Kundiawa, Chimbu Province, Kupo Kaugla and Willie Wamna, on their own behalf and as representative of about 9 other members of the Simbaiku Clan, Kundiawa, Chimbu Province, Nigaul Komba and Kugbane Kuglame, on their own behalf and as representative of about 5 other members of the Wauku Iruku Clan, Kundiawa, Chimbu Province and Dan Kawagle and Kerenga Wau, on their own behalf and as representative of about 59 other members of the Komun Clan, Kundiawa, Chimbu Province v The Independent State of Papua New Guinea [1995] PNGLR 43

• Jurisdiction: Papua New Guinea
• Judge: Sheehan J
• Judgment Date: 04 August 1994
• Court: National Court
• Citation: [1995] PNGLR 43
• Year: 1995
• Judgement Number: N1267

Full Title: Toglai Apa and Bomai Siune, on their own behalf and as representative of about 31 other members of the Okondie Clan, Kundiawa, Chimbu Province, Kupo Kaugla and Willie Wamna, on their own behalf and as representative of about 9 other members of the Simbaiku Clan, Kundiawa, Chimbu Province, Nigaul Komba and Kugbane Kuglame, on their own behalf and as representative of about 5 other members of the Wauku Iruku Clan, Kundiawa, Chimbu Province and Dan Kawagle and Kerenga Wau, on their own behalf and as representative of about 59 other members of the Komun Clan, Kundiawa, Chimbu Province v The Independent State of Papua New Guinea [1995] PNGLR 43

National Court: Sheehan J

Judgment Delivered: 4 August 1994

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

TOGLAI APA AND BOMAI SIUNE, ON THEIR OWN BEHALF AND AS REPRESENTATIVES OF ABOUT 31 OTHER MEMBERS OF THE OKONDIE CLAN, KUNDIAWA, CHIMBU PROVINCE,

FIRST PLAINTIFFS;

AND

KUPO KAUGLA AND WILLIE WAMNA, ON THEIR OWN BEHALF AND AS REPRESENTATIVES OF ABOUT 9 OTHER MEMBERS OF THE SIMBAIKU CLAN, KUNDIAWA, CHIMBU PROVINCE,

SECOND PLAINTIFFS;

AND

NIGAUL KOMBA AND KUGBANE KUGLAME, ON THEIR OWN BEHALF AND AS REPRESENTATIVES OF ABOUT 5 OTHER MEMBERS OF THE WAUKU IRUKU CLAN, KUNDIAWA, CHIMBU PROVINCE,

THIRD PLAINTIFFS;

AND

DAN KAWAGLE AND KERENGA WAU, ON THEIR OWN BEHALF AND AS REPRESENTATIVES OF ABOUT 59 OTHER MEMBERS OF THE KOMUN CLAN, KUNDIAWA, CHIMBU PROVINCE,

FOURTH PLAINTIFFS;

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA,

DEFENDANT

Kundiawa

Sheehan J

27 June 1994

4 August 1994

CONSTITUTIONAL LAW — Constitutional litigation — Unwarranted destruction of property during police raid — Breaches of fundamental constitutional rights — Compensation — Section 58 Constitution.

DAMAGES — Assessment — Destruction during police raid — Vicarious liability — Exemplary damages — When appropriate.

Facts

Following a riot, the police came to the villages of the warring parties and set fire to their houses. The State conceded liability, and the matter came to Court for assessment of damages.

Held

1. Each plaintiff whose property was destroyed has a claim for general and special damages.

2. The wilful destruction of a villager's home without justification or lawful excuse is clearly a breach of fundamental constitutional rights warranting the compensation that s 58 of the Constitution envisages.

3. Exemplary damages are criminal, vindictive, or punitive in nature, and such an award is discretionary.

4. It is not a general principle of vicarious liability that an employer (not himself at fault) may be fined for the wrongful or criminal acts of his servant, no more than it is a general principle of criminal law.

5. Vicarious liability for exemplary damages is reserved for those cases where the employer or superior can be said to be linked by some act of omission or commission as a participant in the wrongful action.

6. While the State must accept responsibility for compensation for the wrongful acts of its servants, it does not seem reasonable that it should be punished and fined for them as well. This is particularly so where, as here, the process of criminal law against the actual offenders is more appropriate. The opportunity to seek damages against the officers themselves was open to the plaintiffs. They have not chosen to do

7. It would be more appropriate in cases such as this to join the responsible offenders as parties to the proceedings so that, in the event that such claims succeed, then damages, including exemplary damages, if considered appropriate, can be awarded against those responsible. That would have the deterrent effect that is a major object of an award of exemplary damages.

8. There should be an award for general and even aggravated damages in this case. Loss, and shock of loss, of home and shelter must be compensated. But even damages awarded for such breaches of fundamental rights must come within the rationale of damages; that is, a compensation for an actual loss, actual inconvenience, or actual injury.

Cases Cited

Papua New Guinea cases cited

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

Dambe v Peri [1993] PNGLR 4.

PNG v Kofowei [1987] PNGLR 5.

Other cases cited

Bradford City Council v Arora [1991] 2 WLR 1377; [1991] 2 QB 507; [1991] 3 All ER 545.

Broome v Cassell & Co [1972] AC 1027; [1972] 2 WLR 645; [1972] 1 All ER 801.

Rookes v Barnard [1964] AC 1129; [1964] 2 WLR 269; [1964] 1 All ER 367; [1964] 1 Lloyd's Rep 28.

Counsel

K Kua, for the plaintiffs.

J Maeokali, for the defendant.

4 August 1994

SHEEHAN J: This matter comes before the Court at Kundiawa for assessment of damages. The writ filed in 1991 was not defended by the State. The delay in bringing this assessment before the Court has been occasioned by the enormity of the task of gathering the evidence of damage to the plaintiffs when their homes, indeed their villages, were destroyed by fire in a police raid in August 1990.

The first plaintiff, a Village Court Magistrate resident in Yuwai village on the outskirts of Kundiawa, deposed that following a riot in Kundiawa town at the beginning of August 1990, a large armed police party came to his village of Yuwai and, without warning or explanation, proceeded to set fire to all the houses there till none were left standing. He said that when he attempted to stop them, he was threatened by them. Unable to do other than watch, he proceeded to follow the police officers as they demolished his village. He says in paragraphs 7 and 8 of his affidavit of 21 May 1994 that:

"7. They then spread out into all the neighbouring villages and I soon saw smoke rising from all the villages in the neighbourhood including Yuwai, Koglomauglo, Kurumba, Mambuno, Kundar, Poglkemambuno and the Wara Agriculture Station, Nikgogl, and Memboglki which lies on the other side of the Chimbu River.

My inspection of these villages after the police had left indicated that all the houses therein totalling about 130 were destroyed. Not a single house was left standing. The burning houses also burnt off all the domesticated plants and crops that were cultivated around the houses.

8. As a result of the police raid, my family and I were left without our homes. All our properties including our working tools, cooking utensils, blankets and clothing, and traditional dressing gear including birds of paradise plumes, loin cloth, shells, etc., were all destroyed. Like other people, I was also forced into erecting a temporary house with a piece of plastic for a wall and roof in which my family lived on a temporary basis. The plastic sheets were obtained at cost from the shops in town. Life was miserable, we had no cooking utensils to prepare our food nor did we have any axes or bush knives to use to cut timber for firewood. All of these contributed to causing us great hardship and suffering."

Another of the plaintiffs, Peter Kagl of Kunda village, deposed:

"1. I am one of the plaintiffs herein and am from the Komun Tribe whose land and homes also lie to the north easterly fringes of the Kundiawa Town.

2. I am 31 years old and am married with four children. I am presently employed as a Shop Supervisor with Kui Valley Trading Pty Limited in town. I have been so employed for the last 7 years but I live in my village at Kundar by the Chimbu River.

3. On or about the 8 August 1990, I was at my place for work in town when I heard talk about the police going out to my area to destroy our homes. As soon as I heard that, I left my work place and ran all the way down to the riverside. The policemen had already gone through the villages before me so I simply followed them. The policemen who were following later attempted to send me back but I insisted and kept on following them.

4. As I was going through the Yuwai Village the houses there were already burning. There were other policemen still milling around in that village. I ran past them and down to my village at Kundar.

5. By the time I arrived at my house it was already burning. The policemen had already gone past my village. Some of the policemen pointed their guns at me as I came running in. There was nothing I could do so I stood back and watched with the rest of my family who were there as our house went up in flames.

6. This caused me so much grief that I went across to a mud puddle, scooped up some mud and rubbed it all over my body as we do when in mourning ...."

Those affidavits are typical of the evidence of the destruction caused during the raid and establish that the plaintiff villagers lost literally everything: shelter, clothing, bedding, and household and gardening utensils.

SPECIAL DAMAGES

The Court's task of assessing damage has been greatly simplified by the exemplary work of the staff of the Office of the Valuer General of the Department of Lands and Physical Planning under the direction of Mr Gabriel Karap, Valuer In Charge of the Highlands Region. His department is well experienced in evaluating villagers' properties for compensation...