Benny Nepal Pole and Others v The Independent State of Papua New Guinea (2008) N3500

• Jurisdiction: Papua New Guinea
• Judge: Gavara–Nanu, J
• Judgment Date: 26 September 2008
• Court: National Court
• Citation: (2008) N3500
• Docket Number: WS NO. 796 OF 2005
• Year: 2008
• Judgement Number: N3500

Full Title: WS NO. 796 OF 2005; Benny Nepal Pole and Others v The Independent State of Papua New Guinea (2008) N3500

National Court: Gavara–Nanu, J

Judgment Delivered: 26 September 2008

N3500

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 796 OF 2005

BETWEEN:

BENNY NEPAL POLE AND OTHERS

Plaintiffs

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

Waigani: Gavara–Nanu, J

2007: 13 & 14 September

2008: 26 September

DAMAGES - Police raids – Six policemen allegedly involved in the raids - Enemy tribes assisting in raids – Enemy tribesmen coming from five villages – Destruction caused widespread – Reasonable to say that much if not all of the actual destruction caused by enemy tribesmen – Quantum of damages.

DAMAGES - Evidence – Need to produce credible evidence in support of claims for damages – Claims for loss of properties, including houses, coffee trees, pigs – Credible supporting evidence from family members and people from plaintiffs’ villages or government officials required – Plaintiffs’ affidavit evidence alone insufficient for substantial damages claimed- No direct evidence to prove actual police involvement in the raids and destruction of properties – Minimum damages sufficient for the plaintiffs.

DAMAGES - Exemplary damages – Detention and raids illegal and unauthorized – Claims for Exemplary damages refused.

COSTS – Enemy tribesmen from five village involved in raids and widespread destruction of properties – Discretion of the Court – Policemen and enemy tribesmen involved in raids not joined in the suit – Claims for costs by the plaintiffs refused – Each party to bear their own costs.

Case cited.

Abel Tomba v The State SC 518.

Andrew Namuesh v Paul Ofoi & Ors [1996] PNGLR 211

Application by Kunzi Waso under s. 57 of the Constitution [1996] PNGL 218

Dambe v Peri [1993] PNGLR 4

David Wari Kofwei v Augustine Siviri & Ors [1983] PNGLR 449

John Salamon v The State & Ors (1994) PNGLR 265

Jonathan Mangope Paraia v Inspector Jacob Yansuan & Others (1995) N1343.

MVIT v James Pupune [1993] PNGLR 370

MVIT v John Etape [1995] PNGLR 214

Peter Wanis v Fred Sikiot & The State (01/08/96) N1350

PNGBC v Jeff Tole SC 694

Tabie Mathais Koim & Ors v The State N1737.

Toglai Apa v The State [1995] PNGLR 43

Yange Lagan & Others v The State (1995) N1369

Council

L. Kari, for the plaintiffs

A. Chillion, for the defendant

26 September, 2008

1. GAVARA–NANU J: This matter was tried for assessment of damages on 14 September, 2007, default judgment having been entered against the defendant on 17 November, 2006.

2. In their Statement of Claim the plaintiffs claim that six members of the Police Force including Constable Timothy Osa without any search warrants, warrants of arrest or providing any reason or sufficient reason, searched the plaintiffs and detained them at Pangia rural lockup then later at Ialibu Police Station in the Southern Highlands Province without laying charges.

3. The plaintiffs also claim that Constable Osa and the other five policemen verbally advised the plaintiffs at the time of their detention that they were kept in custody for being allegedly involved in sorcery killing, although there was no formal complaint made against them warranting their detention. Further, the plaintiffs claim that the policemen including Constable Osa destroyed their houses and other properties including food gardens and cash crops.

4. There are six plaintiffs. Each plaintiff complains of being unlawfully searched and arrested. They also claim breach of their constitutional rights; namely, freedom of movement, freedom from harsh and oppressive treatment and their right to protection of the law under s.37 of the Constitution.

5. On the basis of same allegations, the plaintiffs also claim damages for malicious prosecution.

6. The plaintiffs claim that as a result of the unlawful actions of the policemen they suffered shame, embarrassment and humiliation. The plaintiffs also claim that the policemen killed their pigs.

7. The plaintiffs claim that the defendant is liable for the actions of the policemen under Wrongs (Miscellaneous Provisions) Act, chapter 279, as the policemen were on duty when they committed the above wrongs.

8. It is not in dispute that the plaintiffs have given the appropriate notice under s. 5 of the Claims By and Against The State Act, 1996.

9. Each of the six plaintiffs have in the Statement of Claim claimed K500, 000.00 in general damages, K150, 000.00 in exemplary damages, special damages, interest and costs. However, these amounts have been drastically reduced in the respective supporting affidavits sworn by the plaintiffs and the submissions made on their behalf by their lawyer at the trial for assessment of damages.

10. In respect of the properties damaged, the plaintiffs have each produced photographs which are annexed to their respective affidavits purportedly showing their damaged properties.

11. Directions were given by the Court for the matter to be tried by affidavits only. In compliance with those directions the plaintiffs filed and served their affidavits on the defendant. The affidavits served on the defendant were sworn by each of the plaintiffs namely; Nepal Pole, Paul Pindipe, Robin Temo, Timbu Doa, Rupu Kaima and Lapua Were. The defendant has not filed any affidavits in reply. Thus at the time of trial for assessment of damages, the lawyer for the defendant argued the defendant’s case on the basis of the affidavits filed by the plaintiffs.

12. There is no dispute that the raids were conducted into the villages belonging to the plaintiffs. The plaintiffs have also each conceded that the members of their enemy tribes related to the deceased who accused the plaintiffs of killing the deceased through sorcery also joined the police in the raids and destroyed their properties, which the plaintiffs say included their houses, food gardens, coffee gardens and pigs. The enemy tribesmen came from five villages.

13. At the trial, the plaintiffs through their counsel summarized their respective claims.

The summary of claims for each plaintiff as submitted by their counsel is as follows:-

A. Benny Nepol Pole

i. General damages

Under this head, the plaintiff claims K50, 000.00 for being subjected to inhuman treatment after being falsely accused of being a sorcerer responsible for the death of a deceased and being taken to Ialibu Police Station, where he was allegedly imprisoned for a day. The plaintiff claims that he was embarrassed when he was treated as a sorcerer responsible for the death of the deceased and for being arrested in public and locked up in the police cells, which he says was unconstitutional. The plaintiff also claims that he was falsely imprisoned.

ii. Exemplary damages

Under this head, the plaintiff claims K80,000.00. The plaintiff says the principal offender in this case, namely Constable Osa was identified, who with other five policemen destroyed food and coffee gardens and houses with their contents, did unlawful search on him and unlawfully arrested and detained him and falsely imprisoned him.

iii. Special damages (Value of items lost and for future economic loss)

Under this head, the plaintiff claims K95, 500.00. This amount is claimed for the loss of crops including coffee trees, taros and, bananas. He also claims for the loss of three permanent houses, three bush material houses, pigs, cooking utensils and clothes. In support of these claims, the plaintiff has produced photographs of damages purportedly done to his crops, houses and other properties. The plaintiff has also annexed as Annexure “A” loss of 200 coffee trees which according to the estimates given in the Annexure of a coffee tree with a life span of 20 years would have earned him K160, 000.00.

The itemized special damages by plaintiff’s own affidavit puts the amount claimed for special damages at K95, 500.00. Thus the total amount claimed in damages is K225, 500.00. This includes K50, 000.00 for general damages and K 80,000.00 for exemplary damages.

B. Paul Pindipi

i. General damages

Under this head, the plaintiff also claims K50, 000.00 for being subjected to inhuman treatment and for being treated as a sorcerer responsible for the death of a deceased and for being taken to Ialibu Police Station where he says he was imprisoned for a day. He also claims that he was embarrassed when he was arrested in public and locked up in the police cells which the plaintiff says were unconstitutional. The plaintiff also claims damages for false imprisonment.

ii. Exemplary damages

The plaintiff also claims K80, 000.00 under this head, arguing that the principal offender, Constable Osa was identified whose actions led to his unlawful arrest and detention and damages caused to his properties which he says warrants his claim for exemplary damages.

iii. Special damages (Value of items lost and for future economic loss)

The plaintiff claims K91, 820.00 under this head. The claims are for the loss of crops such as coffee trees, taro, bananas, one permanent house, three bush material houses, pigs, cooking utensils and personal belonging such as clothes. The plaintiff says he lost 250 coffee trees value of which has been attached to his affidavit as Annexure “A”. Mr. Kari submitted that the life span of a coffee tree according to this Annexure being 20 years, the future economic loss from 250 coffee trees destroyed was K200, 000.00.

The itemized special damages in...