Stanley Magi Eremugom on His own Behalf and as Representative of 82 Members of Mainamo Village, Chuave District, Simbu Province v Daniel Tande—Acting Simbu Provincial Police Commander and The Independent State of Papua New Guinea (2005) N2889

• Jurisdiction: Papua New Guinea
• Judge: Batari J
• Judgment Date: 04 August 2005
• Court: National Court
• Citation: (2005) N2889
• Docket Number: WS No 618 of 1999
• Year: 2005
• Judgement Number: N2889

Full Title: WS No 618 of 1999; Stanley Magi Eremugom on His own Behalf and as Representative of 82 Members of Mainamo Village, Chuave District, Simbu Province v Daniel Tande—Acting Simbu Provincial Police Commander and The Independent State of Papua New Guinea (2005) N2889

National Court: Batari J

Judgment Delivered: 4 August 2005

N2889

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 618 OF 1999

BETWEEN: STANLEY MAGI EREMUGOM on his own behalf and as representative of 82 members of Mainamo village, Chuave District, Simbu Province First Plaintiffs

AND:DANIEL TANDE – ACTING SIMBU PROVINCIAL POLICE COMMANDER

First Defendant

AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Goroka : Batari, J

2005 :21 July :4 August

Damages –Claim arising out of police raid –Loss and damages – Assessment of –Onus on plaintiff to prove claim.

Damages Exemplary Damages retribution and deterrence effect of – Where police involved not named as a party – Discretion to award Section 22, 155(2) Constitution.

Cases Cited:

Albert Baine –vThe State (unreported) National Court Judgement)N1335

Paraia –vInspector Jacob Yasuan & Ors (unreported National Court Judgment) N1343

Berham – Carter –vHyden Park Hotel Ltd [1948] 64 TLR 177

Biggin –vPermanite [1951) 1 KB 314]

Aimon Aure & Ors v The State [1996] PNGLR, 85

John Hiyewe & Ors v Titus Pembel & Anor,

Peter Kuriti v The State [1994] PNGLR, 262

Tony Wemin & Ors v The State(unreported National Court Judgement ( 2001)) N2134

Abel Tomba v The State (unreported Supreme Court Judgement (1997) SC 518

Nari & Nari v The State (unreported National Court Judgement (2004)) N2769 2

Counsel:

Mr. G. Muroa for the Plaintiffs

No appearance for the Defendants

JUDGEMENT

4 August 2005

BATARI, J: By writ of summons filed 29 June, 1999 the Plaintiffs are claiming damages for loss of properties and personal injuries as a result of unlawful acts of the Defendants. It is alleged that on 10 June 1999, the Second Defendant by its servants, agent or employees, generally, members of the police force under the command and control of the First Defendant based at Chuave police station, initially assaulted some villagers from Mainamo village in Chuave, Eastern Highlands Province then, on the next two days of 11 and 12 June, the same members trespassed upon the lands and buildings of the plaintiffs in the early hours of the morning and committed various atrocities and breaches of constitutional rights against the villagers and their properties resulting in damages, losses and injuries.

Default judgement having been obtained against the Defendants on 1 June, 2001 in Waigani, the matter was transferred to Goroka for trial on assessment of damages. I am therefore not concerned here with the issue of liability. However, if no cause is shown on the evidence before me, a finding against the claim is open on a no liability finding. This is because of the legal position that, although liability has been determined, it does not follow that the Plaintiffs can automatically get damages. They must prove the form and extent of their losses or damages: See, Nari & Nari v The State (unreported National Court Judgment (2004)) N2769.

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The plaintiff represents eightytwo other claimants from his village of Mainamo. In support of the claim, counsel relies on the same number of affidavits from each plaintiff attesting to what he or she lost or suffered as a result of the police raids. The plaintiffs are in the main claiming damages for loss of personal properties and possessions while a number of them have additional claims for damages for unlawful assault and personal injuries.

A summary of those individual claims appear in a tabular form in the latter part of this judgment.

There is no independent evidence affirming the raid, the assault and other constitutional breaches alleged against the defendants. However, the defendants having failed to refute the allegations, it is open to find on the strength of the affidavits that there was in fact a police raid in which the plaintiffs suffered losses and damages. Hence, it is incumbent on the Court to carefully examined the materials before it asserting the form, extent and validity of the claim and determine if quantification of loss and damages is supported on the evidence.

Generally, the evidence is far from satisfactory in ascertaining damages and loss to properties, the assault and consequential injuries. Apart from selfassertive Affidavits, there is no other independent evidence concerning the nature, detail, quality and value of loss for each individual claim. This is a typical case scenario that so often presents the Court difficulty in dealing with class actions of this nature.

In Albert Baine –vThe State (unreported National Court Judgement) N1335, Woods J when faced with a similar situation stated:

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“The Court must demand more corroboration of such a value and cannot go merely on the talk of the Plaintiff. By analogy if a car is damaged in an accident, a Court requires an appropriate valuation from a reputable car dealer, if a house in town is destroyed it is usually assessed by an insurance assessor. Whilst I am not expecting an insurance assessor to assess village raid destruction, the Court must have some independent evidence to support estimates of value, such as a coronial inquiry, evidence from people in authority like District Officers who knew the area and who are called upon to visit the site immediately after an incident”.

In Jonathan Paraia vInspector Jacob Yasuan & Ors (unreported National Court Judgement) No. N1343, Injia J (as he then was) was more to the point in quoting Lord Goddard CJ in Berham – Carter –vHyden Park Hotel Ltd [1948] 64 TLR 177 at p.178:

“Plaintiffs must understand that, if they bring action for damages, it is for them to prove their damage; it is not enough to write down particulars and, so to speak, throw them at the head of the Court, saying, “This is what I have lost, I ask you to give me damages. They have to prove it”.

I join those Judges in expressing the same sentiment. A person who claims to have been wronged by another and as a result suffered personal inconveniences, loss of amenities, properties, business and so forth always has the onus to prove on the balance of probability, the damage.

The court should be slow in accepting mere assertions on face value particularly where the claim is easily ascertainable as in the situation referred to by Woods, J in Albert Bains v The State (supra). If store goods or items are claimed, their value at the time of purchase can also be ascertainable from the retailer in the area or the administrative centre. Further, experience

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has shown bogus claims being made some so ridiculously unsustainable as in one case where an illiterate villager claimed for loss of university text books without saying how he came to be in possession of those items which would be least expected of a villager of his background to own.

The fact that the other party had not contested the general claim lends support to a claim not being denied by that party. The onus however, remains with the plaintiff to produce the evidence required in Court to prove his or her claim. Failure to adduce such evidence leaves it open for the Court to either dismiss the claim, reduce it or where the evidence permits and justice of the case allows, the Court would do the best it can in arriving at a probable value of the chattel claimed. (See Biggin –vPermanite [1951] 1 KB 314).

In the case before me, the claims can be placed in broad categories of: property damage; property loss; unlawful assault and injury.

1. PROPERTY DAMAGE This is a claim for damaged buildings and household goods, motor vehicles, trade stores and trade store goods. Because there is no proof of the value of each item, I will do any of the following: decline the claim; estimate the value, or accept the value claimed as reasonable or probable value of the damage or loss of property.

(a) Buildings.

The plaintiffs say in their affidavits that their houses were damaged in various ways like broken doors, door locks, louver blades, etc from the raid. There is no evidence on the type, quality and valuation of those fixtures or 6 house components. I will do the best I can to make an overall award in respect of each claim, which will take into account the loss suffered under this category.

Only one plaintiff, Miopa Mineh attested to her house being destroyed by fire. She valued her loss at K2,000.00. The house was built of bushmaterial. Aside from that, there is no evidence on the size, age and type of house that was destroyed. There is also no evidence as to the valuation of the house by an independent source. Such evidence could come from a District Officer who knew the area and who was called upon immediately following the raid to visit the site and assess the damage to houses and other properties.

There has been no fixed and precise method of valuating a bush material house. In some cases I have had regard to, the estimates were not consistent. For instance, in Albert Baine v The State (unreported National Court Judgement) N1335, the Court accepted without further evidence, claims for 4 bush material houses at K300.00 and K500.00. In John Hiyewe & Ors v Titus Pembel & Anor, (unpublished national Court judgement (2002)) Kirriwom J, awarded K250.00 up to K500.00 for 6 bush material houses as reasonable compensation. In Aimon Aure & Ors v The State (1996) PNGLR, 85 Woods J, felt that the...