Yange Lagan and 58 Others, Vironica Andale, David Kandakasi, Komai Nipi, Kandato Wilson, Munak AlepaI, William Wapen, Mara Kulap, Masine Leke, Pokoli Henno, Wapen Poke, Francis Minapin, Kai Pokoli and Het Pakena v The Independent State of Papua New Guinea (1995) N1369

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 07 July 1995
• Court: National Court
• Citation: (1995) N1369
• Year: 1995
• Judgement Number: N1369

Full Title: Yange Lagan and 58 Others, Vironica Andale, David Kandakasi, Komai Nipi, Kandato Wilson, Munak AlepaI, William Wapen, Mara Kulap, Masine Leke, Pokoli Henno, Wapen Poke, Francis Minapin, Kai Pokoli and Het Pakena v The Independent State of Papua New Guinea (1995) N1369

National Court: Injia J

Judgment Delivered: 7 July 1995 or 15 September 1995

N1369

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 419 OF 1995

YANGE LAGAN & 58 OTHERS

V

THE STATE

WS 485 OF 1994

VIRONICA ANDALE & DAVID KANDAKASI

V

THE STATE

WS 486 OF 1994

KOMAI NIPI & KANDATO WILSON

V

THE STATE

WS 487 OF 1994

MUNAK ALEPAI & WILLIAM WAPEN

V

THE STATE

WS 488 OF 1994

MARA KULAP & MASINE LEKE

V

THE STATE

WS 489 OF 1994

POKOLI HENNO & WAPEN POKE

V

THE STATE

WS 490 OF 1994

FRANCIS MINAPIN & KAI POKOLI

V

THE STATE

WS 204 OF 1994

HET PAKENA

V

THE STATE

Mount Hagen

Injia J

19 January 1995

2 February 1995

15 September 1995

CIVIL — Damages — Destruction to property in villages in police raid — Damages — Principles applicable — Assessment of damages — Reasonable damages.

PRACTICE AND PROCEDURE — Method of proof of damages in representative actions in claims arising out of police raid of villages.

Cases Cited

Chaplin v Hicks [1911] 2 KB 786

Bonham-Carter v Hayden Park Hotel Ltd [1948] TLR 177

Ashcroft v Curtin [1971] 1 WLR 1731

David Wari Kofowei v The State [1983] PNGLR 449

Tom Amaiu v The State [1983] PNGLR 87

Repas Waim v Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 254

John Tuink Salmon & Others v The State & Others N1272 [1994]

James Koimo v The State N1322 [1995]

Jonathan Mangope Paraia v The State N1343 [1995]

Counsel

P Kopunye for the Plaintiffs

No appearance for the Defendant

JUDGMENT (PART 1)

7 July 1995

INJIA J: These trial matters on assessment of damage were heard together. They involve claims for damages arising out of police raid conducted at Paiam village, Pogera, Enga Province on 29 July 1993 in retaliation for the fatal shooting of a policeman allegedly by Paiam clansmen. Liability is not in issue as Default Judgment was entered against the State in all these matters. At the trial on assessment of damages, the State was not represented even though according to Mr Kopunye, Notice of Trial in respect of each matter was served on the Solicitor General. Consequently, the matters were heard exparte.

The plaintiff called one Robert Lai, Jeffrey Ambia and Philipus Pulapia to give oral and documentary evidence in relation to Yange Lagan & Others v The State. Their evidence also applied to the other matters. Then for each matter, the respective plaintiffs gave evidence supported by other witnesses.

The general description of the police raid is as follows. On 28 July 1993, there was a tribal fight between the Paiam clan and the Kugulin clan. When the police came to stop the fight, the Kugulin clan allegedly shot dead a policeman. On 29 July 1991, policemen from Pogera and other districts in Enga mobilised themselves and raided the area and destroyed and looted properties belonging to the Angalyane clansmen which occupy the land between the two warring clans. All the plaintiffs come from the Angalyane clan. They burnt down or destroyed houses, trade stores, slaughtered pigs, etc. They also shot dead one Angalyane clansman, one Pakena Pulipia. The destruction and looting was vicious, deliberate and widespread and created a lot of public uproar and condemnation by the Pogera community. This prompted an internal police investigation into the raid headed by police officer John Maru of Police Headquarters, Port Moresby. John Maru, verbally told the people the policemen were wrong. A report supposedlyprepared by him is however not in evidence. The District Officers at Pogera, the Pogera Area Authority and even Pogera Joint Venture officials were also involved in the investigation of the illegal raid. The villagers also got together and commissioned other able people to investigate and collate their stories. Among those who assisted the victims in the investigation are Robert Lai and Jeffrey Ambai. They operated a service station and trade store at Paiam village and were also victims of the raid. And because of their knowledge and experience in business and other related areas, they were able to itemise the properties destroyed or lost and attach a monetary value to each item which they provided to the authorities and their lawyer, Mr Kopunye. Their lawyer went through the list these two men provided and checked and confirmed their value and instituted proceedings in Court. A list of the items and value lost by each plaintiff is contained in each writ (statement of claim). Mr Kopunye also tendered nto evidence the list he prepared from which the list in each Writ was made up. Mr Robert Lai and Jeffrey Ambia also tendered in evidence the original lists they prepared which they gave to Mr Kopunye.

Mr Lai also tendered photographs taken by him a week after the raid.

In all these matters, Mr Kopunye has filed written submissions. From all the evidence before me, I am satisfied that there was a police raid at Paiam village on 29 July 1991 which resulted in the death of Pakena Pulapia and the widespread looting and destruction of personal properties owned by the plaintiff's and these were done illegally. The only issue now is whether each plaintiff has proven, on the balance of probabilities, the damage or loss suffered. I will now deal with each claim separately but the principles applied to one case will also be applicable to other cases.

WS 419/95 YANGE LAGAN & 58 OTHERS V THE STATE

There are 59 plaintiff's involved. The evidence in this matter consists of the oral evidence of Robert Lai, Jeffrey Ambia, Yange Lagan, Per Pulapia, Pulapia Nipa and the plaintiffs lawyer Mr Kopunye. Of these, only Yange Lagan, Per Pulapia and Pulapia Nipa are named as plaintiff's in the Writ. Messers Lai and Ambia merely assisted the 59 plaintiffs to investigate and itemise the lost or destroyed items. Therefore, the evidence of Messers Lai and Ambia and the evidence of Per Pulapia and Pulapia Nipa to the extent that they seek to prove the loss suffered by the other 56 plaintiffs is either hearsay or hearsay upon hearsay. The 56 plaintiffs are merely identified by their names in the Writ and the various lists produced in Court. There are photographs supposedly of these plaintiffs standing besides their burnt down or damaged properties but there is no proof from the plaintiffs themselves that they are the persons shown in the photographs. There are also some handwritten statements describing the particlars of the photographs which appear to have been written by either Mr Lai or Mr Ambia or someone else.

The plaintiff has closed its case and tendered written submissions in respect of each plaintiff. In the normal course of things, I am required to deliver decision. The plaintiffs and their counsel appear to have proceeded with this case under the impression that the other 56 plaintiffs evidence was unnecessary in view of the evidence of the 6 above-named witnesses. In accordance with normal procedure, I am required to deliver judgment.

I am faced with a situation here where the overwhelming majority of plaintiffs in a class action have not given evidence at all. They have relied on their able and experienced and educated members of their clan or group to collate their story and present it to the Court on their behalf.

In this action as well as in other actions in the nature of class actions which have come before the Court in the past, especially claims arising out of police raid into villages, it is not uncommon to see the representatives of the plaintiffs suing for damages on behalf of their fellow clansmen or relatives. Many of the plaintiffs do not give oral evidence or file any affidavits to support their claim. The approach which plaintiffs seem to be adopting or the plaintiffs have adopted in the present case is that the plaintiff would call a few witnesses to give evidence on their behalf. Usually, the more able, experienced and educated person would give evidence of his investigation into the plaintiff's claim, assess the value and present it in Court with the assistance of their lawyer. These witnesses make representation on behalf of other plaintiffs whose identities are only known to the Court by name through the representatives or with reference to the list provided in the Statement of Claim or list provied to the Court in evidence. Their identities are unknown. There are also cases where lawyers seek to tender documents to the Court such as photographs or valuation reports without proper compliance with the Evidence Act. The Court is then urged to rely on such evidence to make an assessment of damages. Many of these class action claims involve substantial amounts of money which are calculated and pleaded in the writ. For instance, the total amount of general damages claimed in this one action is K227,534.90.

Whilst I appreciate that the plaintiffs may be conscious of the enormous amount of Court time taken up to deal with class actions and the need to place only necessary and sufficient evidence before the Court...