Thomas Paraka v Thomas Upaiga and The Independent State of Papua New Guinea (2010) N4090

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2010) N4090
• Year: 2010
• Docket Number: WS NO 799 OF 1999
• Date: 14 July 2010

Full Title: WS NO 799 OF 1999; Thomas Paraka v Thomas Upaiga and The Independent State of Papua New Guinea (2010) N4090

National Court: Makail, J

Judgment Delivered: 14 July 2010

TRESPASS - Liability - Police raid - Destruction and looting of properties - Policemen acting within scope of duty - Liability of State, its servants and agents - Vicarious liability - Wrongs (Miscellaneous Provisions) Act, Ch 297 - s1.

REAL PROPERTY - Property dispute - State lease - Grant of title - Proof of - Evidence of - Lack of - Effect of.

DAMAGES - No title to property at time of illegal police raids - Illegal occupation of property - Apportionment or reduction of damages.

Cases cited:

Peter Wanis v Fred Sikiot (1995) N1350; Anis Kewa v Desmond Kami (2010) N3899; Aimon Aure v Captain Peter Boko [1996] PNGLR 85; Tabie Mathias Koim v The State [1998] PNGLR 247; Robert Taropen & Ors -v- John Anawe & The State: WS No 1166 of 2004 (Unnumbered & Unreported Judgment of 08th March 2010); Nelson Pawa v Linus Yumbun (2009) N3784; James Liwa v Markis Vanimo (2008) N3486

JUDGMENT

14th July 2010

1. MAKAIL, J: This is matter came for ex-parte trial on liability and assessment of damages on 11th May 2010 after Mr Waliyo Mapsio of the Solicitor General’s office failed to appear at trial despite being aware of the date for trial. The claim arose from four separate incidents of alleged unlawful police raids at the premises of the plaintiff at Warakum in Mt Hagen on 14th August 1998, 15th August 1998, 23rd September 1998 and 11th October 1998 by unidentified members of the police force led by the first defendant. The plaintiff alleged that as a result of the unlawful police raids, he lost various house items including severe damage to his motor vehicles, the first a Mitsubishi Canter truck bearing registration No HAI-903 and the other, a Toyota Dyna truck, bearing registration No P-327R. The defendants denied the claim.

Liability

2. As the defendants had denied the claim, the first issue for determination is liability. In his affidavit sworn on 28th July 2004 and filed on 17th August 2004, (exhibit “P1”), the plaintiff deposed that he is the registered proprietor of the property described as section 49, allotment 73, Mt Hagen and annexed as annexure “A”, a copy of the title deed to verify his assertion. From the title deed, it is noted that the property is on State land (State lease - Volume 186, Folio 224) and the transfer and registration of title in the plaintiff’s name was effected on 30th December 2002, a worthy and important point to note here as I will return to comment on it later.

He further deposed that policemen acting under the command and control of the first defendant entered his premises on four different occasions and carried out the raids. They were conducted on:

* 14th August 1998,

* 15th August 1998,

* 23rd September 1998, and

* 11th October 1998.

3. On each occasion, the first defendant went with a group of unidentified policemen in a police vehicle described as a Toyota land-cruiser, bearing registration no ZGV-203 and used it to transport some of the properties that they removed from his premises. At paragraph 4 of his affidavit, he outlined the details of the properties that were damaged, destroyed and/ or removed from the premises ranging from household items like mattresses, cooking utensils, radio, deep fridge, video deck to water tank, louvers, door and coffee pulper. He gave a total figure of K45,385.26 as the total value of the properties destroyed and/ or looted by the first defendant and his policemen.

4. At paragraph 5 of his affidavit, he further deposed that the first defendant and his policemen damaged two of his motor vehicles. One of the motor vehicles was a Toyota Dyna, bearing registration No P-327R and the other, a Mitsubishi Canter truck, bearing registration No HAE-903. The first defendant and his policemen damaged the Toyota Dyna’s windscreen, bumper bar, mirrors, head and signal lights, doors, side door glasses and many others. He gave a figure of K14,860.63 as the value of the damage. As for the Mitsubishi Canter truck, they damaged the front bumper, windscreen, doors, rear glass, side door...