Aina Mond, Apa Grai, Alpones Siwi Koglua, Baundo Mogono and Andrew Konma on Their Own Behalf And On Behalf Of All Members Of The Auakane, Morumbagawamo, Tamgoyani, Okondie and Awauglakane Clans of The Kamaneku Tribe More Particularly Named In Schedule "A" of The Writ Of Summons And Tangane Koglwa And All Those People Named In Columns 2 And 3 Of Schedule "B" of The Writ of Summons And Gigbai Koglwa By His Next Friend Alponse Siwi Koglwa And All Those Infants By Their Next Friends Named In Schedule "C" of The Writ of Summons And Umba Siwi and All Those Persons Named In Schedule "D" of The Writ of Summons And Gundu Umba and All Those Persons Named In Columns 2 And 3 Of Schedule "E" of The Writ of Summons And Kunduane Siwi By His Next Friend Umba Siwi and All Those Infants Named In Schedule "F" of The Writ Of Summons v Chief Inspector Robert Kalasim and The Independent State of Papua New Guinea (2004) N2638

• Jurisdiction: Papua New Guinea
• Judge: Manuhu AJ
• Judgment Date: 26 August 2004
• Court: National Court
• Citation: (2004) N2638
• Year: 2004
• Judgement Number: N2638

Full Title: Aina Mond, Apa Grai, Alpones Siwi Koglua, Baundo Mogono and Andrew Konma on Their Own Behalf And On Behalf Of All Members Of The Auakane, Morumbagawamo, Tamgoyani, Okondie and Awauglakane Clans of The Kamaneku Tribe More Particularly Named In Schedule "A" of The Writ Of Summons And Tangane Koglwa And All Those People Named In Columns 2 And 3 Of Schedule "B" of The Writ of Summons And Gigbai Koglwa By His Next Friend Alponse Siwi Koglwa And All Those Infants By Their Next Friends Named In Schedule "C" of The Writ of Summons And Umba Siwi and All Those Persons Named In Schedule "D" of The Writ of Summons And Gundu Umba and All Those Persons Named In Columns 2 And 3 Of Schedule "E" of The Writ of Summons And Kunduane Siwi By His Next Friend Umba Siwi and All Those Infants Named In Schedule "F" of The Writ Of Summons v Chief Inspector Robert Kalasim and The Independent State of Papua New Guinea (2004) N2638

National Court: Manuhu AJ

Judgment Delivered: 26 August 2004

1 Constitution—Breach of constitutional rights—Constitution s36, s37(1), s44, s49 and s53—Exemplary damages.

2 Tort—Liability—Duty of care—Breach of duty—Appropriate remedy.

3 Damages—Destruction of properties in police operation—General damages—Special damages.

4 Aundak Kupil v State (1983) PNGLR 350, Anis v Sikiot & State (1995) N1350, Apa & Ors v Police & State [1995] PNGLR 43, John Wena & 46 Ors v The State (2003) N2529, Kim Pai v State (2002) N2207, Kolaip Palapi v State (2001) N2274, Kuk Kuli v The State (2004) N2592, Kuriti v State [1994] PNGLR 262, Kusa v MVIT (2003) N2328, Lagan & 58 Ors v State (1995) N1369, Lin Wan Xin v Wau Yanhong (2001) N2160, Livingstone v Rawyards Coal (1880) 5 AC 25, Manuesh v State [1996] PNGLR 211, Moka v MVIL (2001) N2098, Peter Kamane & 66 Ors v Police & State WS No 233 of 1994 (unreported), Pickett v British Rail Engineering Ltd (1978) 3 WLR 955, Salamon & Ors v State [1994] PNGLR 265, Sharp & Sharp v The State & Ors (1995) N1398, Shelly Kupo v MVIT (2002) N2282, Tony Wemin & Ors v State (2001) N2134, Yooken Pakilin & Alvis Kandai v State (2001) N2212 referred to

___________________________

N2638

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

WS NO. 434 OF 1997

BETWEEN:

AINA MOND, APA GRAI, ALPONES SIWI KOGLUA, BAUNDO MOGONO and ANDREW KONMA on their own behalf and on behalf of all members of the Auakane, Morumbagawamo, Tamgoyani, Okondie and Awauglakane Clans of the Kamaneku Tribe more particularly named in Schedule "A" of the Writ of Summons.

First Plaintiffs

AND:

TANGANE KOGLWA and all those people named in Columns 2 and 3 of Schedule "B" of the Writ of Summons.

Second Plaintiffs

AND:

GIGBAI KOGLWA by his next friend ALPONSE SIWI KOGLWA and all those infants by their next friends named in Schedule "C" of the Writ of Summons.

Third Plaintiffs

AND:

UMBA SIWI and all those persons named in Schedule "D" of the Writ of Summons.

Fourth Plaintiffs

AND:

GUNDU UMBA and all those persons named in Columns 2 and 3 of Schedule "E" of the Writ of Summons.

Fifth Plaintiffs

AND:

KUNDUANE SIWI by his next friend UMBA SIWI and all those infants named in Schedule "F" of the Writ of Summons.

Sixth Plaintiffs

AND:

CHIEF INSPECTOR ROBERT KALASIM

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Mount Hagen: Manuhu, AJ

2004: June, 21, 22, 23 & August 26.

JUDGMENT

Constitution – Breach of constitutional rights – Constitution ss. 36, 37(1), 44, 49 & 53 – Exemplary damages.

Tort – Liability – Duty of care – Breach of duty – Appropriate remedy.

Damages – Destruction of properties in police operation – General damages – Special damages.

Cases cited in the judgment:

1. Aundak Kupil v. State (1983) PNGLR 350.

2. Anis v. Sikiot & State (1995) N1350.

3. Apa & Ors v. Police & State [1995] PNGLR 43.

4. John Wena & 46 Ors v. The State (2003) N2529.

5. Kim Pai v. State (2002) N2207.

6. Kolaip Palapi v. State (2001) N2274.

7. Kuk Kuli v. State (28.06.04)(Unreported).

8. Kuriti v. State [1994] PNGLR 262.

9. Kusa v. MVIT (2003) N2328.

10. Lagan & 58 Ors v. State (1995) N1369.

11. Lin Wan Xin v. Wau Yanhong (2001) N2160.

12. Livingstone v. Rawyards Coal (1880) 5 AC 25.

13. Manuesh v. State [1996] PNGLR 211.

14. Moka v. MVIL (2001) N2098.

15. Peter Kamane & 66 Ors v. Police & State – WS No. 233 of 1994 (unreported).

16. Pickett v. British Rail Engineering Ltd (1978) 3 WLR 955.

17. Salamon & Ors v. State [1994] PNGLR 265.

18. Sharp & Sharp v. The State & Ors (1995) N1398.

19. Shelly Kupo v. MVIT (2002) N2282.

20. Tony Wemin & Ors v. State (2001) N2134.

21. Yooken Pakilin & Alvis Kandai v. State (2001) N2212.

Counsel:

Mr. K. Kua & Mr. P. Kuman, for the plaintiffs.

Mr. B. Ovia, for the defendants.

26th August 2004.

MANUHU, AJ.: This is a claim for unliquidated damages for alleged destruction of property and personal effects during a police raid on 29 May 1991. On the said day, a police operation, code – named Operation Lomet 2/91 (“police raid”) was allegedly conducted in the plaintiffs’ villages resulting in an extensive burning and destruction of the plaintiffs properties and other personal effects.

The question of liability has been determined by consent of the parties. The proceeding was filed on 8 May 1997 and served on the same day. The State failed to file its Notice of Intention to Defend and Defence within the time required under the Claims By and Against the State Act and the National Court Rules. Seven months thereafter, on 9 December 1997, the plaintiffs filed an application seeking default judgment. Such judgment was entered by his Honour, Sir Mari Kapi, DCJ (as he then was) with the consent of the Solicitor-General on 17 December 1997. The matter comes before me for assessment of damages only.

Preliminary matters

It is necessary to understand how the plaintiffs have organized themselves and what they are specifically claiming. There are 977 plaintiffs altogether. Each of them is allegedly affected by the police raid, and is suing in his name. They have come to court in the following order.

The First Plaintiffs are all the male plaintiffs who were involved in the coronial inquiry held in relation to the police raid. As heads of their respective household, they are claiming special, general and exemplary damages with interest. The Second Plaintiffs are wives and adult dependents of the First Plaintiffs. They are only claiming general and exemplary damages with interest. They do not claim special damages. The Third Plaintiffs are minors and or infant dependents of the First Plaintiffs. They are claiming general and exemplary damages with interest. They do not claim special damages.

The Fourth Plaintiffs are all the male plaintiffs who were also affected by the police raid but were not included in the coronial inquiry. They, like the First Plaintiffs, are claiming special, general and exemplary damages with interest. The Fifth Plaintiffs are wives and adult dependents of the Fourth Plaintiffs. They are only claiming general and exemplary damages with interest. They do not claim special damages. The Sixth Plaintiffs are minors and or infant dependents of the Fourth Plaintiffs. They are claiming general and exemplary damages with interest. They do not claim special damages.

Secondly, certain plaintiffs have died since the police raid in 1991. On 25 August 2003, appropriate orders for substitution of these deceased plaintiffs were made together with other consequential orders. It is necessary to note who the substitute plaintiffs are. This information appears in the tables in the First Schedule of the judgment.

Thirdly, in spite of the consent order on liability, it is appropriate, even if it is a mere formality, that the basis of liability be explained. While such a course may take a little longer than necessary, it recognizes that, in most cases, liability and assessment of damages are proved on the basis of the same or overlapping evidence. Consequently, while the court is analyzing the evidence for the purpose of assessing damages, it is appropriate if the justification for having reached that stage is also laid out. In so doing, the evidence and the reasoning process are presented in totality for the benefit of the parties as well as other persons interested in the decision.

Finally, as a reminder, the civil standard of proof should never be taken lightly by reason of a default judgment, an exparte proceeding, or a consent order. The...