Bob Kol v The Independent State of Papua New Guinea (2010) N3912

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Makail, J
• Judgment Date: 10 March 2010
• Citation: (2010) N3912
• Judgment Number: N3912
• Year: 2010
• Docket Number: WS NO 216 OF 1996

Full Title: WS NO 216 OF 1996; Bob Kol v The Independent State of Papua New Guinea (2010) N3912

National Court: Makail, J

Judgment Delivered: 10 March 2010

N3912

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 216 OF 1996

BETWEEN

BOB KOL

Plaintiff

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

Mount Hagen: Makail, J

2008: 06th June &

2010: 10th March

TORT - Liability - Unlawful police raid - Destruction of properties - Whether police conducted raid - Identification of - Whether police acted within the scope of employment - Vicarious liability - Wrongs (Miscellaneous Provisions) Act, Ch 297 - Section 1.

DAMAGES - Assessment of - General damages for property destroyed and looted - Personal items, chattels, cash and store goods - Damages for violation of constitutional rights - Freedom from inhuman treatment - Deprivation of liberty - Freedom from arbitrary search and entry - Freedom from unjust deprivation of property - Proof of - Constitution - Sections 42, 44, 53, 57 & 58.

Cases cited in this judgment:

Papua New Guinean cases cited:

Mali Pyalia & Ors -v- Chief Inspector Leo Kabilo & The State (2003) N2492

Desmond Huaimbukie & Ors -v- James Baugen & The State (2004) N2589

Peter Wanis -v- Fred Sikiot & The State (1995) N1350

Eriare Lanyat & Ors -v- George Wagulo & The State [1997] PNGLR 253 Obed Lalip & 20 Ors -v- Fred Sikiot & The State (1996) N1457

Jonathan Mangope Paraia -v- The State (1995) N1343

Aimon Aure & Ors -v- The State [1996] PNGLR 85; (1995) N1346

Abel Tomba -v- The State (1997) SC518

Robert Taropen & Ors -v- The State: WS No 1166 of 2004 (Unnumbered & Unreported Judgment of 08th March 2010)

Nelson Pawa -v- Linus Yumbun & The State (2009) N3784

Kawi Yawi -v- Torepa Nenga, Anton Sinawai & The State (2002) N2209 James Gunambo & Anor -v- Sergeant Thomas John Upaiga & The State: WS No 1321 of 2002 (Unnumbered & Unreported Judgment of 25th January 2010)

Overseas cases cited:

Livingstone -v- Rawyards (1880) 5 App cases 25

Bonham - Carter -v- Hyden Park Hotel (1948) 64 TLR 177

Butler -v- Egg & Egg Pulp Marketing Board (1996) 114 CLR 185

Albazero (1977) AC 774

Counsel:

Mr P Kopunye, for the Plaintiff

Mr G Odu, for the Defendant

JUDGMENT

10th March 2010

1. MAKAIL, J: The plaintiff sued the defendant for tortuous actions of about eight to nine policemen who raided his house and tavern at Kuli Gap located east of Mt Hagen town on 16th and 17th September 1991. He alleged that the policemen who raided his house and tavern were from Mt Hagen Police Station and were led by Chief Superintendent Samson Mapi. They entered his house and destroyed his personal items, stolen his cash money and looted cartons of beer, soft drinks and other goods from his tavern. They also damaged his motor vehicle by breaking its glasses, deflating its tyres and smashing its doors.

2. In his statement of claim endorsed to the writ of summons filed on 29th February 1996, he claimed general damages of K7,208.95 for loss of property of various descriptions, general damages for trespass, exemplary damages and damages for violation of constitutional rights including interest and legal costs. In its defence filed on 01st May 1996, the defendant generally denied liability. It denied the existence of a raid by members of the police and had called for the identification of the policemen involved. It alleged that as no policemen were identified by the plaintiff, it could not be held liable for actions and omissions of the unidentified policemen.

3. Trial was held to determine liability and also assessment of damages in the event that liability is determined against the defendant. The issues therefore were, whether members of the police conducted the raid and if so, whether they acted within the scope of their duty or employment. In the event that liability is determined against the defendant, the last issue is the measure of damages. Both parties tendered their witnesses’ affidavits by consent and elected not to cross examine the deponents. For the plaintiff, the following affidavits were tendered:

1. Affidavit of the plaintiff sworn on 13th August 1999 and filed on 18th August 1999, (exhibit “P1”);

2. Affidavit of Mark Peke sworn on 04th June 1999 and filed on 18th June 1999, (exhibit “P2”);

3. Affidavit of Biange Naringa sworn on 04th June 1999 and filed on 18th June 1999, (exhibit “P3”);

4. Affidavit of Kai sworn on 04th February 1999 and filed on 19th February 1999, (exhibit “P4”);

5. Affidavit of Dobri Rapi sworn on 18th February 1999 and filed on 19th February 1999, (exhibit “P5”);

6. Affidavit of Simon Noki sworn on 18th February 1999 and filed on 19th February 1999, (exhibit “P6”); and

7. Affidavit of Peter Charles Kopunye sworn and filed on 14th December 2004, (exhibit “P7”).

4. For the defendant, the following affidavits were tendered:

1. Affidavit of Teddy Tei sworn on 12th July 2002 and filed on 07th August 2004, (exhibit “D1”); and

2. Supplementary affidavit of Teddy Tei sworn on 28th May 2004 and filed on 17th August 2004, (exhibit “D2”).

Liability

5. I have perused the affidavits and deduce the following as the undisputed facts: the plaintiff is from Kuli Gap, near Mt Hagen town of this province. He is a medium size business operator as he owned a tavern called Kuli Gap tavern and also a coffee buyer. He also owned a house and a motor vehicle. He is also a respected community leader, a member of the Peace and Good Order Committee and a reserve member of the Police Force. On 16th and 17th September 1991, a group of men entered his premises and destroyed his personal items, stole his cash money and looted cartons of beer and soft drinks and other goods from his tavern. They also damaged his motor vehicle by breaking its glasses, deflating its tyres and smashing its doors.

6. The facts in dispute are; the plaintiff alleged that it was members of the police who raided his house and tavern on 16th September 1991. He and his witnesses identified one of them as Chief Superintendent Samson Mapi. This policeman led a group of policemen to his premises and gave orders to them to destroy and loot his personal items, cash, cartons of beers, soft drinks and other goods. The plaintiff alleged that the reason for the policemen raiding his house and tavern was because one of the policemen identified as Teddy Tei was assaulted by three men from Kuli Gap area at Kuli Gap earlier that day. Mr Tei was traveling in a PMV bus from Lae to Mt Hagen when he was attacked by a group of men who were allegedly drunk. It happened that Mr Mapi was driving past that afternoon and saw the fight and stopped. He came to the aid of Mr Tei but in the process the men surrounded him and removed a pistol from him and fled.

7. The plaintiff and a policeman named Papa retrieved the pistol from the three men and returned it to Mr Mapi. They also arranged with Mr Mapi to hand over the three men at the road side at Kuli Gap for the police to pick them up. Mr Mapi and the policemen returned the same afternoon to pick them up. It was there that Mr Mapi gave orders to the policemen to destroy the plaintiff’s house and tavern and loot his personal items and goods.

8. The defendant’s evidence through Mr Tei is that; he is from Mul-Baiyer electorate and a policeman based at Mt Hagen police station. He was attacked by men while traveling from Lae to Mt Hagen at Avi in a PMV bus. A man by the name of Parakui Koi attacked him by punching him on his chest, grabbed his shirt collar and pulled him out of the PMV bus. He got out of the PMV bus and tried to fight back when other drunkards on the road converged on him. They came in numbers. During the attack, the Western Highlands Provincial Police Commander, Mr Mapi was driving passed and saw the attack and stopped. He called the attackers to stop but they kept on assaulting him. He saw Mr Mapi and ran to him and some of the attackers pursued him. They also surrounded Mr Mapi and removed Mr Mapi’s pistol and fled. He was able to get into the motor vehicle and Mr Mapi drove off quickly to escape further attacks.

9. Mr Mapi reported the attack to Mt Hagen police station. The main attackers were later identified as Parakui Koi, Mark Wimb and Namba. They were arrested by Mt Hagen police and charged for assault. They were convicted by the Mt Hagen District Court for assault and fined K400.00 each and placed on good behaviour bond. He has no knowledge of any damage caused by the police at the plaintiff’s premises. He made a statement to the police after the plaintiff, who is his wife’s uncle (in law) pestered him to make a statement so that he (the plaintiff) could make a claim against the State for loss suffered and he obliged.

10. However, he said that he was not personally present when policemen raided the plaintiff’s premises on the dates in question and said that all his attackers were the plaintiff’s tribesmen and were at the plaintiff’s tavern drinking beer that day. Finally, he denied signing an affidavit filed by Kopunye Lawyers on 17th February 1999. He also said that the signature on that affidavit was not his. His signature was the one he used during his schooling...