Paul Kelly & 54 Others and Joel Wal & 314 Others v Fred Yakasa, Metropolitan Superintendent and Garry Baki, Police Commissioner and the Independent State of Papua New Guinea (2020) N8425

• Jurisdiction: Papua New Guinea
• Judge: Polume-Kiele J
• Judgment Date: 12 May 2020
• Court: National Court
• Citation: (2020) N8425
• Docket Number: WS No 1576 of 2009
• Year: 2020
• Judgement Number: N8425

Full Title: WS No 1576 of 2009; Paul Kelly & 54 Others and Joel Wal & 314 Others v Fred Yakasa, Metropolitan Superintendent and Garry Baki, Police Commissioner and the Independent State of Papua New Guinea (2020) N8425

National Court: Polume-Kiele J

Judgment Delivered: 12 May 2020

N8425

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1576 of 2009

BETWEEN

PAUL KELLY & 54 OTHERS

First Plaintiffs

AND

JOEL WAL & 314 OTHERS

Second Plaintiffs

AND

FRED YAKASA, METROPOLITAN SUPERINTENDENT

First Defendant

AND

GARRY BAKI, POLICE COMMISSIONER

Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Polume-Kiele J

2017: 6th October, 15th November

2020: 12th May

PRACTICE AND PROCEDURE - Trial on liability and assessment of damages

CAUSE OF ACTION – Property damage – unidentified police officers (State servant and agents) acting within their lawful duty and responsibility – State to discharge the onus of proving that what they did was totally removed from the domain of their authorised actions – State vicariously liable for actions and or omissions of police officers acting within lawful duties and functions

CONSTITUTION – Breach of constitutional rights – – Constitution, Protection from inhuman treatment, s 37 (1) & (17); Right to full protection of the law; Breaches of s 59 - Claim for Compensation. Police actions or conduct carried out under conferred authority – servants and agents of the State acting within lawful duties and functions

Brief Facts

(1) This is a representative claim for tort of negligence by a total of 369 plaintiffs. The first plaintiffs are led by a Mr. Paul Kelly who acts for himself and on behalf of 54 Others. The second plaintiffs appear to be led by a Mr. Joe Wal representing himself and 314 Others. All the plaintiffs are residents of Destiny, 5 Mile Ridge near the Erima Bridge, National Capital District.

(2) On or about Wednesday, 16th June 2009 a fight broke out between young men from the Western Highlands and Enga Provinces following a State of Origin (Game 2) at 5 Mile Ridge, Maramuni, National Capital District. Two young men were stabbed and killed during this fight. One of the deceased was a son of a former Western Highland Province, Member of Parliament.

(3) On 26 June 2009, the first and second defendants in performance of their primary functions as members of the Police Force and in accordance with their constitutional duties to preserve peace and good order in the country; conducted a routine search and arrest operation for purpose of apprehending the suspects. The routine search and arrest operation commenced at the Maramuni and ended at the Erima Bridge, 5 Mile area, National Capital District.

(4) The plaintiffs alleged that during the course of conducting the search and arrest operation, carried out by the first and second defendants, their servants and or agents; the search and arrest operation turned into a raid whereby the servants, and or agents of the first and second defendants caused destruction to their homes, properties, food gardens and stole their cash, killed their domesticated animals and breached their human rights.

(5) The plaintiffs claimed that the unidentified policemen unlawfully raided their settlement, and went on a rampage, destroying and stealing properties for which they now claim general, special and exemplary damages for breaches of human rights plus interests and costs.

(6) The writ of summons was filed on 14 December 2009.

(7) On the 28th April 2010, the third defendant filed a defence to the claim.

(8) Liability against the first and second defendants was entered by default on 18 February 2011.

(9) Trial on liability of the third defendant and quantum was conducted on 6 October 2017. Submissions were heard on 15 November 2017.

(10) This is my ruling on liability of the third defendant and quantum.

Held:

(1) The plaintiffs proved on the balance of probabilities that the police operation carried out on 26 June 2009 by a number of unidentified police officers at Destiny, Maramuni, 5 Mile Settlement, NCD, was not a routine village search and arrest operation but a raid involving destruction and looting of properties, food gardens and economic tree plants including domesticated animals.

(2) The first and second defendants and the unidentified police officers were performing their primary functions as members of the Police Force and acting in accordance with their constitutional duties under s 197 of the Constitution: to preserve peace and good order in the country; when they failed to maintain and, as necessary, enforce the law in an impartial and objective manner resulting in the first plaintiffs sustaining damages in the destruction to their homes, properties, food gardens and stealing of their cash, killing of their domesticated animals and breaches of their human rights for which they now claim general, special and exemplary damages and compensation for breaches of human rights plus interests and costs. The first and second defendants including the unidentified police officers as servants and agents of the State attached to the National Capital District Task Force committed the tort of negligence.

(3) The State failed to discharge the onus of proving that what they did was totally removed from the domain of their authorised actions (Nogo Suzuke v The State WS 951 of 1994, unreported, 21.06.96; Eriare Lanyat and Another v The State [1997] PNGLR 253; Wama Kints v The State (2001) N2113 applied. The third defendant is liable for purposes of the principles of vicarious liability pursuant to s 1(1) and (4) of the Wrongs Act (Miscellaneous Provisions) Act Ch 297.

Cases Cited

Porgera Freighters Ltd v Bank of South Pacific Ltd (2004) N2662

Simon Mali v The State (2002) SC690 and Tigam Malewo v Keith Faulkner (2009) SC960

Kiee Toap v The State and Others (2004) N2766

Eliakim Laki and 167 Others v Maurice Alaluku and Others (2002) N2001

Dambe v. Peri [1993] PNGLR 4

Philip Kunnga v The Independent State of Papua New Guinea (2005) N2864

Madang Provincial Government v John Simbai (2015) SC1473

Nogo Suzuke & Anor v The State (WS No 951/94) (unreported) 21.06.96

Eriare Lanyat and Another v The State [1997] PNGLR 253

Wama Kints v The State (2001) N2113)

Robin Martin v The State, WS No. 855 OF 2010 (Unreported Judgment, 17.04.2017)

William Mel v Coleman Pakalia & Ors. (2005) SC790

Coecon Ltd Receivers’/Manager Appointed) v. National Fisheries Authority (2002) N2182

PNGBC v. Jeff Tole (2002) SC 694

Roger Bai Nimbituo v The State (2018) N7235)

MVIL v Kauna Kiangua (2015) SC1476

Banduwara Waranumbo v Hyper Construction Limited (2012) N4882

Teddy Suan v Peter Dumba (2013) N5428

Kelly Koi v Constable Mathew Anseni (2014) N5580

MVIT v Tabanto [1995] PNGLR 214

MVIT v Pupune [1993] PNGLR 370

Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247

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

Otto Benal Magiten v William Moses (2006) N5008

Vincent Kerry v The State (2007) N3127

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

Nare v Independent State of Papua New Guinea (2017) SC1584

The State v David Wari Kofowei and Others [1987] PNGLR 5)

Celcius Raiam & 177 Others v Sergeant Elkis Piritai & 2 Others

Paraia v Yansuan, as Police Station Commander (Porgera) [1995] N1343

David Kofowei v Augustine Siviri and Others [1983] PNGLR 449

Aina Mond v Chief Inspector Robert Kalasim and The Independent State of Papua New Guinea

J.S.T Ltd v Arkhefield Pty Ltd (2014) SC1352

Thomas Wapi v Sergeant Koga Ialy (2013) N5108

Peter Wanis -v- Fred Sikiot&The State (1994) N1350

Lapun Aine v the State (2011) N4389 and Anis Kewa -v- Desmond Kami & The State (2010) N3899

Anis v Sikiot & State (1995) N1350

Robert Taropen & Ors v John Anawe & The State (2010) N3911

Nelson Pawa v The State (2009) N3784

Thomas Paraka v Thomas Upaiga & The State (2010) N4090

Nagi Yuak Kwi v Francis Tande (2011) N4910)

The State [The Government of Papua New Guinea] v Trevor McCleary [1976] PNGLR 321

Likui Trading Ltd v Joseph Selna (2011) N4530

The Administration of Papua New Guinea v Carroll [1974] PNGLR 265

Tommy v MVIT (1991) N1023

Martha Limitopa & Poti Hiringe v The State [1988-89] PNGLR 364

Losia Mesa v Gari Baki as Commissioner of Police & The (2009) N3681

James Gunambo v Sergeant Thomas John Upaiga (2010) N3859S

Yange Lagan v State (1995) N1369

Yooken Pakilin v State (2001) N2212

Petrus and Gawi v Telikom PNG Ltd (2008) N3373

Joe Kape Meta v Kumono, Kulunio & The State (2012) N4958

Namuesh v State [1996] PNGLR 211

Salamon & Ors v. State [1994] PNGLR 265

Peter Kamane & 66 Ors v. Police & State – WS No. 233 of 1994 (unreported)

Kim Pai v State (2002) N2207

Alex Latham & Kathleen Latham v Henry Peni (1990) N4163

James Koimo v The State [1995] PNGLR 535

Kenneth Bromley v Finance Pacific Ltd (2001) N2097

George Kala v Joseph Kupo (2009) N3677)

Luke Deukari v Danny Kuglam (2006) N3087

Kua v Patiken [2010] N4103)

Toglai Apa v. The State [1995] PNGLR 43

Nathan Kandakasi v The...