Alphonse Alep v Madang Provincial Government and Hon James Yali, Governor, Madang Province and Dunstan Augustine, Provincial Administrator and Jim Namora, Madang Police Station Commander and Tony Wagambie Jnr, Goroka Mobile Squad Commander and Inspector Henry Mong, Task Force Commander and Sergeant Tariawi, Rapid Response Unit, Madang and Joshua Kas, Task Force Madang and Sam Inguba, Commissioner of Police and The Independent State of Papua New Guinea (2011) N4442

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 11 November 2011
• Court: National Court
• Docket Number: WS NO 184 of 2005
• Citation: (2011) N4442
• Year: 2011
• Judgement Number: N4442

Full Title: WS NO 184 of 2005; Alphonse Alep v Madang Provincial Government and Hon James Yali, Governor, Madang Province and Dunstan Augustine, Provincial Administrator and Jim Namora, Madang Police Station Commander and Tony Wagambie Jnr, Goroka Mobile Squad Commander and Inspector Henry Mong, Task Force Commander and Sergeant Tariawi, Rapid Response Unit, Madang and Joshua Kas, Task Force Madang and Sam Inguba, Commissioner of Police and The Independent State of Papua New Guinea (2011) N4442

National Court: Cannings J

Judgment Delivered: 11 November 2011

N4442

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 184 OF 2005

ALPHONSE ALEP

Plaintiff

V

MADANG PROVINCIAL GOVERNMENT

First Defendant

HON JAMES YALI, GOVERNOR, MADANG PROVINCE

Second Defendant

DUNSTAN AUGUSTINE, PROVINCIAL ADMINISTRATOR

Third Defendant

JIM NAMORA, MADANG POLICE STATION COMMANDER

Fourth Defendant

TONY WAGAMBIE JNR, GOROKA MOBILE SQUAD COMMANDER

Fifth Defendant

INSPECTOR HENRY MONG, TASK FORCE COMMANDER

Sixth Defendant

SERGEANT TARIAWI, RAPID RESPONSE UNIT, MADANG

Seventh Defendant

JOSHUA KAS, TASK FORCE MADANG

Eighth Defendant

SAM INGUBA, COMMISSIONER OF POLICE

Ninth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Tenth Defendant

Madang: Cannings J

2011: 25 February, 25 March, 11 November

DAMAGES – breach of agreement – breach of human rights – unlawful destruction of properties by police – squatter eviction exercise – plaintiff claims K3,347,667.10.

A squad of police officers raided a block of State land as part of a squatter eviction exercise and destroyed a house and other properties owned by the plaintiff. The plaintiff sued the police officers involved, the provincial government and its leaders who authorised the exercise and the State, claiming damages for breach of an agreement and breach of human rights. The defendants were found liable by entry of default judgment. This is the trial on assessment of damages. The plaintiff sought eight categories of damages: (1) exemplary damages, K35,000.00; (2) general damages, K521,069.10; (3) trespass on land, K15,000.00; (4) distress and mental suffering, K30,000.00; (5) breach of constitutional rights, K15,000.00; (6) special, damages, K95,000.00; (7) loss of future earnings, K2,626,598.00; and (8) loss of payments to witnesses, K10,000.00; being a total claim of K3,347,667.10.

Held:

(1) The plaintiff failed to adduce sufficient evidence to support most of the claims.

(2) The court awarded a total amount of damages of K255,150.28; plus interest of K161,254.98, being a total judgment sum of K416,405.26.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518

Albert Baine v The State (1995) N1335

Eles Jay Clothing Ltd v The State WS No 858 of 1998, 29.09.06

Graham Mappa v ELCOM (1992) N1093

James Liwa v Markis Vanimo (2008) N3486

John Pias v Michael Kodi & Ors (2006) N2972

Jonathan Mangope Paraia v The State (1995) N1343

Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331

Marcus Mong v John Selou (2002) N2208

Misac Pokonoming v Jeffery Simiri WS 1596/2005, 26.10.07

MVIT v Tabanto [1995] PNGLR 214

Nelson Pawa v Linus Yumbun (2009) N3784

Peter Wanis v Fred Sikiot and The State (1995) N1350

Spirit Haus Ltd v Robert Marshall (2004) N2630

Stettin Bay Lumber Company Ltd v Gesring Gabing Bob (2011) SC1096

Wama Kints v The State (2001) N2113

Yange Lagan and Others v The State (1995) N1369

Yooken Paklin v The State (2001) N2212

TRIAL

This was a trial on assessment of damages.

Counsel

B W Meten, for the plaintiff

T Tanuvasa, for the defendants

11 November, 2011

1. CANNINGS J: This is an assessment of damages against Madang Provincial Government and the State, six police officers and the provincial governor and provincial administrator, who have been found liable for the unlawful actions of the police in carrying out a squatter eviction exercise at Sisiak 3, Madang, on State land, Portion 637, occupied by the plaintiff, Alphonse Alep. He had lived on the land for 30 years and established his home and businesses there. On Thursday 18 December 2003 an armed police squad burned down the plaintiff’s house and destroyed other property. The causes of action relied on by the plaintiff are breach of an agreement (which recognised that the plaintiff was a genuine settler and protected him against such police action without the leave of the National Court) and breach of human rights. The plaintiff seeks eight categories of damages:

(1) exemplary damages, K35,000.00;

(2) general damages, K521,069.10;

(3) trespass on land, K15,000.00;

(4) distress and mental suffering, K30,000.00;

(5) breach of constitutional rights, K15,000.00;

(6) special, damages, K95,000.00;

(7) loss of future earnings, K2,626,598.00;

(8) loss of payments to witnesses, K10,000.00;

being a total claim of K3,347,667.10.

THE EVIDENCE

2. The plaintiff relied on six affidavits, admitted into evidence by consent. There was no oral evidence. The defendants offered no evidence. The six affidavits are summarised in the following table.

AFFIDAVIT EVIDENCE RELIED ON BY THE PLAINTIFF

No	Deponent	Description	Date sworn
1	Alphonse Alep	Plaintiff	11.05.10
Evidence: He was identified as a genuine settler under the memorandum of agreement pursuant to which the eviction exercise was supposed to be conducted – the eviction exercise regarding illegal (as distinct from genuine) settlers was conducted on 15 and 16 December 2003 – on 17 December 2003 the plaintiffs in National Court proceedings, OS No 10 of 1998, John Simbai & Ors v The State & Ors, obtained an order from the National Court restraining the Madang Provincial Government and the Police from taking any further steps without the leave of the Court – contrary to the order and the agreement the police raided his area on 18 December 2003, burning down his newly built, high-covenant house, burning two of his motor vehicles, destroying building materials, whitegoods, a trade store and store goods, crops and livestock, causing him to incur expenses, eg transport, witness costs, legal costs.
2	Rosemary Alep	Plaintiff’s wife	27.08.09
Evidence: She is a primary school teacher and married the plaintiff in 1999 and lived with him at Sisiak 3 until the day of the police raid – she watched the raid from a nearby hill and saw the police burn down their house, clubhouse, trade store, and vehicles – the police saw her watching them and shouted abuse at her – she feels she has suffered psychologically as a result of observing what the police did to their property.
3	Saleng J Hosa	Valuer	03.12.09
Evidence: He is the Madang Provincial Valuer – he prepared a valuation report of the improvements made to the land occupied by the plaintiff following his investigation of the property in January 2003, upon request by the plaintiff: main improvements were a 70-square, high-post, four-bedroom residence and a 370.5 square metre trade store building, including a clubhouse – he also valued household items, trade store furniture and fittings and building materials and equipment.
4	John Bunbun	Councillor	27.08.09
Evidence: He is the Ward 9 councillor, responsible for the Sisiak 3 area, Madang Urban Local-level Government – he was served with the National Court restraining order of 17 December 2003 at 3.00 pm that day; and he attempted to serve it on the police – he was present when the police raided the plaintiff’s premises at 10.30 am on 18 December 2003 – eight police vehicles were involved, the policemen were armed – they proceeded to destroy, pull down and set fire to the plaintiff’s buildings, vehicles, clubhouse and crops – the police shouted abuse at members of the plaintiff’s family – the police abused him (the deponent) when he tried to explain the effect of the order of the National Court – the police ensured that everything was destroyed before leaving the scene.
5	Steven Taiba	Community leader	27.08.09
Evidence: He is a community leader of Ward 9 – the plaintiff’s premises were admired by the residents of Sisiak 3 – he was present at the plaintiff’s premises on 18 December 2003 when the raid took place and assisted Councillor Bunbun in trying to speak to the police to get them to stop the raid but the police scared them by firing guns.
6	Tabby Elu	Businessman	09.07.10
Evidence: He has an accounting certificate and is a former bank business lending manager – he prepared a projected profit and loss statement for the plaintiff’s businesses, based on estimates provided by the plaintiff.

APPROACH TO ASSESSMENT OF DAMAGES

3. Though the plaintiff has secured default judgment and the defendants have presented no evidence the plaintiff still must prove his case. The following principles will be applied:

· The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of...