Douglas Aire v Simon Togoi

• Jurisdiction: Papua New Guinea
• Judge: Toliken J
• Judgment Date: 11 March 2016
• Citation: (2016) N6434
• Court: National Court
• Year: 2016
• Judgement Number: N6434

Full : WS No 593 of 2002; Douglas Aire, Benstead Besuna & 132 ors v Simon Togoi and Jack Penero and Joseph Kupo and the State (2016) N6434

National Court: Toliken J

Judgment Delivered: 11 March 2016

N6445

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 593 OF 2002

BETWEEN

DOUGLAS AIRE, BENSTEAD

BESUNA & 132 ORS.

Plaintiffs

AND

SIMON TOGOI

First Defendant

AND

JACK PENERO

Second Defendant

AND

JOSEPH KUPO

Third Defendant

AND

THE STATE

Fourth Defendant

Popondetta: Toliken, J.
2015: 18th, 19th November

2016: 11th March

CIVIL LAW – Torts - Damages in trespass to land and chattels and livestock, conversion, negligence and breach of Constitutional rights – Police raid – Police and village youth in pursuits of suspects – Destruction of property, theft of chattels and livestock done by youths on order and encouragement of police officers in the course of.

CIVIL LAW – Vicarious liability – Whether State is vicariously liable for actions of police officers – Whether State is vicariously liable for actions of village youths – State vicariously liable for actions of its police officers and for actions of village youths who acted on orders and directions of police officers.

Papua New Guinea Cases Cited:

Jack v Karani [1992] PNGLR 391

Kuk Kuli v The State (2004) N2592

Maku v Maliwolo (2012) SC1171

More v The State [1998] PNGLR 290

Wango v Andakundi and The State [1992] PNGLR 45

Roka Coffee Estate Pty Ltd v Gerebi [1973] PNGLR 486

Overseas Cases Cited:

Hill v Chief Constable of West Yorkshire (1987) UKHL 12 (Hill) (1989) AC 53

Counsel:

L.B. Mamu, for the Plaintiffs.

Nil appearance for the Defendants.

JUDGMENT ON LIABILITY

11th March, 2016;

1. TOLIKEN J: The plaintiffs in this matter sued the defendants under several heads of damages. These are -

· damages for trespass to land, chattels and for conversion.

· damages for negligence.

· damages for breach of Constitutional rights.

2. The claim arose out of a raid on their village by the police and youths from a neighbouring village in pursuit of certain suspects.

BACKGROUND

3. This matter has a very long history. So, it is instructive to briefly set out the pertinent historical facts.

4. The suit was first filed on 13th of May 2002 by Powes Parkop Lawyers on behalf of 423 persons from Harange Village, Oro Province. The State, through the Solicitor General, filed its Notice of Intention to Defend and Defence on 25th November 2002. On 17th March 2003, Paraka Lawyers, acting for the Defendants, filed a Notice of Change of Lawyers. On 26th May 2005, Paraka Lawyers filed for Better and Further Particulars. On 16th June 2003, Paraka Lawyers applied through a Notice of Motion for the matter to be dismissed for want of prosecution or alternatively for want of representative capacity.

5. On 26th September 2003, Parkop Lawyers filed for the dismissal of the defendant’s motion to dismiss, and for the substantive matter to be set down for trial. On 10th October 2003, the Defendant’s motion of 16th June 2003 to dismiss was withdrawn by consent and the matter was returned to the Registry for a trial date and venue to be fixed.

6. On 20th May 2004, the Plaintiffs filed an amended Statement of Claim pursuant to Order 8 Rule 51 of the National Court Rules (the Rules) and on 24th May 2004 filed for the withdrawal of 290 of the original Plaintiffs from the suit. On 11th June 2004 the Plaintiffs filed for Summary judgment. On 07th July 2004 the Defendants filed an amended Defence. The Plaintiffs filed their submissions on their Motion to dismiss on 19th July 2004. The Defendants filed their response on 16th July 2004. On 06th August 2004, the Plaintiffs motion for summary judgment was refused by Lay J.

7. By letter of 10th August 2004, Parkop Lawyers requested for the matter to be listed at the next caller-over. The Deputy Registrar, Mr. Ian Augerea (as he then was) responded and advised that the matter was listed for the call-over on 31st August 2004. On 10th August 2006, Parkop Lawyers filed a Notice to Set Down for Trial.

8. The matter remained on the list without much activity after that. Then, on 17th February 2014, the Public Solicitor filed a Notice of Change of Lawyers and also filed their appearance for the Plaintiffs. On the 04th of June 2014, I ordered the parties to attempt to settle out of Court and further ordered that they advise the court of the outcome at the October sittings.

9. On 16th of June 2014, the Plaintiffs filed, by Notice of Motion, pursuant to Order 5 Rule 12 (2)(a)(b) for the removal of 10 Plaintiffs who had passed away from the suit. These are, Faith Gambore, Onimus Ute, Gilpin Sambura, Rex Kaia, Douglas Andi, Albert Goviro, Taylor Pesasa, Clive Pesasa, Henkin Simonopa and Henry Herivo. This motion was never moved and remained on foot.

10. On 22nd of September 2014, the Plaintiffs Lawyers wrote to the Solicitor General advising that their clients will accept K120,000.00 as total compensation for their loss and K20,000.00 for costs. The Solicitor General did not reply.

11. On 14th of October 2014, I extended my orders for out of Court settlement and further directed that the Solicitor General replies to the Plaintiffs’ offer, and adjourned the matter to the December sittings.

12. The Defendants did not appear at any of the subsequent appearances after that until the matter finally was set down for ex parte hearing on liability for 18th of November 2015. For the purpose of the trial the Plaintiffs filed a Notice under Section 35 of the Evidence Act Ch. 48 that they will be relying on the following:

1. Affidavit of Douglas Aire filed on 15th April 2015

2. Affidavit of Blackford Ukambari filed 15th April 2015

3. Affidavit of Dominic Hangiri filed on 16th April 2015

13. I conducted the hearing on liability only, on the 18th November 2015, and adjourned the matter tentatively for a decision for December 2015, subject to the Chief Justice approving my request for a special fixture for Popondetta. That request was denied.

14. As I noted above, the Plaintiffs’ motion dated 16th April 2015 for the removal of those Plaintiff who had died still remains on foot and must be heard first. I did so, and invited counsel to move the motion which counsel did. I granted the motion and ordered that the named deceased Plaintiffs are removed from the suit.

15. The pertinent facts to this suit are these. The First and Second Defendants were, at the material time, members of the Royal Papua New Guinea Constabulary. They were attached to the Saiho and Popondetta Police Stations. The Second Defendant was the OIC of Saiho Police Station. The Third Defendant was the incumbent Commissioner of Police. All three defendants were officers in the employ of the State.

16. Around late 2001, there was tension between villagers from Harange and Koropata No.2 over the theft of a pig owned by one Roland of Koropata No.2 by youths from Harange.

17. On 01st of November 2001, Police officers Simon Togoi (Tongkoe) and Jack Pengoro, and two other policemen from Saiho Police Station entered Harange village in search of the suspects. They were accompanied by two Community Based Constables (CBCs) and youths from Koropata No.2 village.

18. They arrived at Harange in a police vehicle and met Dominic Hangiri. Constables Togoi and Pengoro asked Dominic to take them across the river to the main village and show them the houses of the boys who had stolen Roland’s pig. They crossed the river and Dominic took them to the end of the village and showed them the houses of three of the suspects namely Bornard Aneki, Thomas Bagiha and Gorden Tikori. Constable Togoi and Pengoro then ordered the burning down of these houses and other houses in the village as well.

19. In all, a total of 7 permanent houses and 5 makeshift houses were destroyed. These belonged to Abraham Begahu, (permanent), David Andi (1permanent and 1 makeshift) Theresa Bagiha (1 permanent and 1 makeshift) Alenaus Goviro (1 permanent and 1 makeshift), Mina Aneki (1 permanent and 1 makeshift), Graham Besuna (1 permanent), Bonard Aneki (1 permanent bush material house) and Smith Kerari (1 makeshift). The Koropata youths also set about to breaking down houses and stealing properties in the presence of the Togoi and Pengoro. Pengoro was giving orders to the Koropata youth to do what they were doing.

20. The policemen fired shots into the air and also shot dead some pigs belonging to Douglas Aire, Benstead Besuna, Spencer Ute, Livingston Beambu, John-hunt Kunjari, Justin, Ika, Theresa Bagiha, Peter Tigari, Albert Goviro, Alinaus Goviro and David Andi. Other villagers lost personal effects and had tree crops cut down by the Koropata youths. At no time did the policemen stop them as the youth continued with their spate of destruction.

21. On the evidence before me, I am satisfied that Constables Pengoro, Togoi and other policemen, including the CBCs and youths from Koropata No. 2, committed the torts of trespass to land and chattels against the Plaintiffs and further that they stole properties from the plaintiffs.

22. The tort of conversion...