Tony Wemin on his own behalf and as representative of 218 members of Maina Clan of Chuave District, Simbu Province and John Marome on his own behalf and as representative of 205 members of Kenai Clan of Chuave District, Simbu Province v Robert Kalasim, Provincial Police Commander of Simbu Province and The Independent State of Papua New Guinea (2001) N2134

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J
• Judgment Date: 21 June 2001
• Court: National Court
• Citation: (2001) N2134
• Year: 2001
• Judgement Number: N2134

Full Title: Tony Wemin on his own behalf and as representative of 218 members of Maina Clan of Chuave District, Simbu Province and John Marome on his own behalf and as representative of 205 members of Kenai Clan of Chuave District, Simbu Province v Robert Kalasim, Provincial Police Commander of Simbu Province and The Independent State of Papua New Guinea (2001) N2134

National Court: Kirriwom J

Judgment Delivered: 21 June 2001

N2134

PAPUA NEW GUINEA

[In the National Court of Justice]

BETWEEN:

TONY WEMIN on his own behalf and as representative of 218 members of Maina Clan of Chuave District, Simbu Province

- First Plaintiffs —

AND:

JOHN MAROME on his own behalf and as representative of 205 members of Kenai Clan of Chuave District, Simbu Province.

- Second Plaintiffs —

AND:

ROBERT KALASIM, Provincial Police Commander of Simbu Province

- First Defendant —

AND:

THE INDEPENDANT STATE OF PAPUA NEW GUINEA

- Second Defendant —

GOROKA & LAE: KIRRIWOM, J

2001: 21st June

CIVIL — Damages — Police raid — Assessment of Damages — Loss and destruction of houses, crops, food gardens, livestock and other properties — Breach of constitutional rights.

Plaintiffs numbering altogether 425 sued the Police and the State for damages, interests and costs for breach of their constitutional rights and loss and destruction of properties and their homes.

Following hearing on assessment of damages which the Defendants did not defend, the Court awarded a substantial sum of money including interest amounting to K2,370,300.00.

Held:

1. On the balance of probabilities the Court is satisfied that the Appellants did suffer the losses claimed.

2. Exemplary damages against the State or employer can only be justified if there is clear evidence of policy or practice guidelines that authorise Police to conduct village raids and demolish houses and other properties and things. Otherwise exemplary damages can only be awarded against individual policeman involved applying the independent discretion rule.

Cases Cited:

1. John Tuin Salamon vs. The State & Others [1994] PNGLR 265.

2. Toglai Apa & Others vs. The State (Reported National Court Judgment, 1994) N1267.

3. Steven Kirino & Others vs. The State (Unreported National Court Judgment, 1998) WS. 408 of 1995.

4. Simon Kaupa & Others vs. The State (Unreported National Court Judgment, 1998) WS. 88 of 1996.

5. Tom Amaiu vs. Commissioner for Corrective Institution & Others [1982] PNGLR 87.

6. Aimon Aure & Others vs. Captain Peter Boko & PNG [1996] PNGLR 85.

7. Yange Lagan & 58 Others vs. The State, N1369.

8. Peter Kuriti vs. PNG [1994] PNGLR 262.

Counsel:

Mr G. Muroa for the Plaintiffs

No appearance for the Defendants

21ST June, 2001

Kirriwom, J: This is a substantial claim for loss and damage suffered or incurred by the two plaintiffs and 423 other claimants of Keinamaina villages of West Elimbari area of Chuave District, Chimbu Province following an illegal police raid conducted on the 6th and 8th of July 1992. In monetary terms, given the number of claimants seeking compensation for the losses they suffered and general damages for breaches of their constitutional rights, the Defendants are liable to pay quite a substantial sum in damages that amount to over two million kina in total.

The Plaintiffs obtained default judgment when neither of the Defendants named in this proceeding showed any interest in defending the case against them for damages to be assessed. This is therefore the hearing for assessment of damages, which is also undefended. It must be pointed out at the outset that Solicitor General's Office did attempt to cause appearance on behalf of the Defendants but it turned out to be an half-hearted one that in the end the Plaintiffs' case was virtually uncontested, both as to the liability of the Defendants and the amount of damages sought. The chronology of events will show the neglect on the part of the Defendants despite all due efforts made in accordance with the Rules to serve the Notice of Proceedings on them.

This is indeed a very large case in comparison with other similar cases that have come before this court in the recent time as the amount sought by the Plaintiffs, if proved, run into millions of kina, that the State must inevitably pay on the basis of vicarious liability of its errant servants and agents.

The two plaintiffs and 423 claimants are members of Maina and Kenai Clans in West Elimbari Constituency of Chuave District, Simbu Province. They are suing the First Defendant in his representative capacity as the Provincial Police Commander of Simbu Province and the Officer in Charge of the members of the Police Force in Simbu at the material time of the raid on the Plaintiffs' villages and the State, as the employer of the First Defendant and the policemen involved for damages for assault and battery, breach of constitutional rights, destruction and loss of lives, houses, trade stores and trading stock, food gardens, cash crops, livestock, domesticated animals and other properties.

THE BACKGROUND INCIDENT

From the Plaintiffs' perspective, the following background is given thus providing a possible explanation for the police intervention. On 5th July 1992 a tribal fight took place between members of Maina Clan and Kenai Clan of West Elimbari Constituency. The fight erupted from an internal family dispute between two brothers from the Maina Clan, which somehow got Kenai Clan involved. The next day 6th July 1992 a squad of 30 — 40 policemen armed in combat gear entered Maina village killing or stealing animals, destroyed, stole or set fire to houses and properties, assaulted and/or injured people and caused deaths of two sick old men. Apart from Maina villagers, police also caused damage to properties belonging to Kenai people or the Second Plaintiffs on the same day as they proceeded towards Maina village. The same number of policemen returned two days later on 8th July 1992, but this time targeted Kenai village. They caused similar destruction and damage to the homes, personal belongings apart from crops, livestock and other properties of value to the members of Kenai Clan.

COMMENCEMENT OF PROCEEDINGS

The Plaintiffs filed the Writ of Summons on 7th November 1996. Service of the Writ was effected on the Solicitor General on 11th November 1996. Subsequently there was an amendment to the Original Writ. The Amended Writ was filed on 21 November 1996 and services were effected on the Solicitor General on 26th November 1996 and on the First Defendant in person on 2nd December 1996.

On 18th December 1996 the Plaintiff's lawyer put the Solicitor General on notice that default judgment will be entered if no notice of intention to defend is given. A search of the National Court Registry on 21 January 1997 revealed that no notice had yet been given. On 4th April 1997 a lawyer from Solicitor General's Office telephoned Nonggor & Associates Lawyers and requested an extension of time. According to the affidavit of Benedict Batata of Nonggor & Associates, he advised the officer concerned to state their request in writing and that they were prepared to extend for one week. The verbal request was subsequently confirmed by letter of the same date. However search of the Registry by the Plaintiffs' lawyers on 14th April 1997 showed that despite the one week grace period given to the Solicitor General by the lawyers for the Plaintiffs, no notice of intention to defend was filed for both Defendants. On 23rd of July 1997 default judgment was entered against both Defendants which was entered on 30th July 1997 for damages to be assessed.

ASSESSMENT OF DAMAGES

This trial before me is for assessment of damages. Liability is no longer an issue. The file notations on the master file in Court only show four occasions when the matter was brought before me. When the matter was mentioned on 6 November 1998 neither of the Parties were present. On 8 March 1999 Mr Kot appeared for the Plaintiffs for purposes of obtaining trial dates. On 15 December 1999 when Mr Muroa appeared for the Plaintiff, there was no appearance on behalf of the Defendants. The matter was fixed for trial for 8 and 9 May 2000. And when the matter finally came up for trial on the days fixed the Defendants were still undefended on the trial for assessment of damages.

The Trial:

The Plaintiffs proceeded with their case by relying on their sworn affidavits. Altogether 425 affidavits were sworn by all the 425 plaintiffs including the two representatives and filed in support of this case. Each claimant deposes in his Affidavit to the background to the trouble in their area and the extent of damage suffered by him and others. Their losses and damage as deposed to in their affidavits are set out in the Table.

No. Name Description of Damages Loss...