Francis Fuliva, Bruno John, Benedict Kinura, Sam Wingavi, Awimba Luke & 1,276 Others v Inspector Tony Wagambie Junior and Madang Provincial Government and The Independent State Of Papua New Guinea (2013) N5221

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 16 May 2013
• Court: National Court
• Citation: (2013) N5221
• Docket Number: WS NO 1406 OF 2006
• Year: 2013
• Judgement Number: N5221

Full Title: WS NO 1406 OF 2006; Francis Fuliva, Bruno John, Benedict Kinura, Sam Wingavi, Awimba Luke & 1,276 Others v Inspector Tony Wagambie Junior and Madang Provincial Government and The Independent State Of Papua New Guinea (2013) N5221

National Court: Cannings J

Judgment Delivered: 16 May 2013

N5221

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1406 OF 2006

FRANCIS FULIVA, BRUNO JOHN, BENEDICT KINURA,

SAM WINGAVI, AWIMBA LUKE & 1,276 OTHERS

Plaintiffs

V

INSPECTOR TONY WAGAMBIE JUNIOR

First Defendant

MADANG PROVINCIAL GOVERNMENT

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Madang : Cannings J

2012: 7 December 4 April,

2013: 16 May

Damages – for breach of agreement governing eviction of settlers – damages for pain and suffering – damages for loss and destruction of property – apportionment of damages between defendants.

1,281 plaintiffs, illegal settlers on Government land, succeeded at a trial in establishing a cause of action in breach of the agreement governing their eviction against three defendants. A separate trial was conducted on assessment of damages. The plaintiffs claimed two categories of damages: (1) general damages for breach of agreement and pain and suffering, K5,000.00 each, a sum of K6,405,000.00; and (2) specific damages for destruction of property, different amounts being sought by each plaintiff, a sum of K13,585,763.81 (being 50% of the total amount claimed in the plaintiffs’ evidence). The total amount of damages sought by all plaintiffs was K19,990,763.81. The Solicitor-General who appeared for the first defendant, the officer in charge of the police operation that involved forced eviction of the plaintiffs and destruction of their properties, and the third defendant, the State, argued that the first and third defendants should be excluded from the order to pay damages as they were not culpable for breach of the agreement, which was entirely the responsibility of the second defendant, the provincial government that was party to the agreement with the plaintiffs. The second defendant disagreed with the other defendants on the issue of apportionment of damages but all defendants agreed that any damages awarded to the plaintiffs should be nominal or negligible in view of the plaintiffs’ failure to prove that they were genuine settlers or provide credible and corroborated evidence of the extent of their property damage.

Held

(1) If a judgment imposes liability on two or more defendants generally without apportioning liability amongst them the presumption arises that all defendants are jointly and severally liable for damages and for satisfaction of the judgment debt after assessment of damages.

(2) Here there was nothing in the judgment on liability or in the circumstances of the case to defeat the presumption as to joint and several liability of the defendants for payment of damages so the first and third defendants are not excluded from the order for damages.

(3) There was no evidence in support of the plaintiffs’ claim for general damages and nothing was awarded for that category of damages.

(4) As for the claims for property damage the evidence was insufficient to fully support the claims, which suffered from a lack of corroboration, but the plaintiffs proved that they incurred some losses and destruction of their properties. Each claim pleaded in the statement of claim was discounted by 90% to arrive at an award of damages for property losses. Each claimant was awarded interest on the amount of general damages, calculated at the rate of 8% per annum from the date of service of the writ to the date of judgment, a period of 6.54 years.

(5) Total damages awarded was K2,717,152.76; total interest awarded was K1,412,919.44; the total judgment sum being K4,130,072.20.

Cases cited

The following cases are cited in the judgment:

Albert Baine v The State (1995) N1335

Anuta Jobou v Alfred Kumasi and The State (2012) N4607

Cecilia Bonny v Dorothy Amino (2009) N3591

Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24

Eton Pakui v The State (2006) N2977

Francis Fuliva v Inspector Tony Wagambie, Madang Provincial Government and the State (2011) N4397

Joe Tipaiza v James Yali (2008) N3472

Jonathan Mangope Paraia v The State (1995) N1343

Justin Bau v Paul Karl (2010) N4123

Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779

Kolaip Palapi and Others v Sergeant Poko (2001) N2274

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

Lepanding Singut v Kelly Kinamun (2003) N2499

London Association for the Protection of Trade v Greenlands Ltd [1916] 2 AC 15

Paias Wingti v Kala Rawali (2010) N3982

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

Public Curator v Peter Pilembo (2008) N3487

Richard Dennis Wallbank & Jeannette Minife v The State [1994] PNGLR 78

Trawen v Kama and Laimo (2010) SC1063

Tzen Pacific Ltd v Kanawi Pouru (2013) N5156

Yooken Paklin v The State (2001) N2212

TRIAL

This was a trial on assessment of damages.

Counsel

B W Meten for the plaintiffs

M Kelly & S Phannaphen for the first and third defendants

G Haumu for the second defendant

1. CANNINGS J: This is an assessment of damages after liability has been established against three defendants in favour of 1,281 plaintiffs. The plaintiffs are individual citizens who had illegally settled on Government land in Madang town. They were affected by an eviction exercise in December 2003. Police squads led by the first defendant Inspector Tony Wagambie Jnr entered the settlements in which they were living and forcefully removed them and in the process destroyed their property including houses and other buildings and their contents and gardens and crops. The plaintiffs sued Inspector Wagambie and the second defendant Madang Provincial Government and the third defendant the State, claiming damages for the allegedly unlawful actions of the police. A trial was conducted on the question of liability. The court found that involvement of the police in the forced eviction exercise was unlawful. It was contrary to an agreement between the Provincial Government and the Madang Settlement Committee (which represented the plaintiffs and other illegal settlers) that was entered into in May 2000 and sanctioned by an order of the National Court in July 2000 (Francis Fuliva v Inspector Tony Wagambie, Madang Provincial Government and the State (2011) N4397). The agreement was also breached in other respects: there was a failure to identify and verify genuine settlers, a failure to resettle genuine settlers and a failure to allow for dialogue between the Provincial Government and the settlers. The trial on liability was concluded by an order that relevantly stated:

(1) It is declared that the plaintiffs have established a cause of action in breach of agreement against the defendants.

(2) The proceedings shall proceed, unless the parties agree on an alternative course of action or the court orders otherwise, to a trial on assessment of damages.

2. No alternative course of action has been agreed on so a trial on assessment of damages was conducted.

EVIDENCE

3. Most of the plaintiffs or their personal representatives (in the case of 53 plaintiffs who have died since commencement of proceedings in 2006) swore an affidavit giving details of the settlement in which they lived and the property that they claim was destroyed and its value. All affidavits were admitted into evidence without objection and constituted the plaintiffs’ case. An affidavit by Peter Torot, Co-ordinator Field Services for Madang Provincial Government, deposing to the circumstances in which the eviction exercise was carried out was admitted into evidence without objection. It constituted the defendants’ case. There was no oral testimony for the plaintiffs or the defendants.

SUBMISSIONS

4. The plaintiffs’ counsel Mr Meten submitted that the plaintiffs should be awarded two categories of damages:

(1) general damages for breach of agreement and pain and suffering, K5,000.00 each, a total sum of K6,405,000.00; and

(2) specific damages for destruction of property, different amounts being sought by each plaintiff, a total sum of K13,585,763.81, being 50% of the total amount claimed in the plaintiffs’ evidence (note that the actual figure quoted by Mr Meten was K12,401,282.50, which was 50% of the total amount claimed in the statement of claim, however the total amount claimed through the plaintiffs’ evidence (K27,171,527.62) exceeded the total amount claimed in the statement of claim (K24,802,565.00).

The total amount of damages sought by all plaintiffs is K19,990,763.81. They also claim interest.

5. Mr Kelly and Mr Phannaphen of the Office of the Solicitor-General submitted on behalf of Inspector Wagambie and the State that their clients should be excluded from any order to pay damages as neither Insp Wagambie nor the State was responsible for breaching the agreement, which was entirely the...