Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Konia v Dosinga [1989] PGNC 17; N745 (25 August 1989)

Unreported National Court Decisions

N745

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

O.S. NO. 182 OF 1987
BETWEEN: BORE KONIA
FIRST PLAINTIFF
AND: BOREA KONIA (AS ADMINISTRATOR OF THE ESTATE OF BUBIA BORE (DECEASED)
SECOND PLAINTIFF
AND: DANIEL DOSINGA
FIRST DEFENDANT
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
SECOND DEFENDANT

Lae & Waigani

Los J
16 May 1989
25 August 1989

Counsel

Zurenuoc for Plaintiff

Defendants not represented

LOS J: Borea is the father of thef the deceased Bubia Bore. The deceased died from a gunshot wound at Lae in 1987. The father claims compenn under section 58 of the Constitution as well as customary compensation. I deal only with with the question of liability.

Before getting into the substantial issues, I deal with a preliminary matter here. The proceeding was commenced in December 1987 and since then it was stood over several times. It came before the National Court for mention 5 times in early 1988 and had been stood over because the 1st Defendant had not been served with the Originating Summons. The Second Defendant was served with the summons on 12th January 1988. The matter came again in August 1988 before the National Court presided by me. On that day I granted an order for substituted service as it appeared clearly to me then that the 1st Defendant had escaped from jail and had been at large for some time. The matter then was adjourned to the following circuit. The notations on the file indicate that thereafter the matter had been stood over four times. In May circuit (1989) during the call-over I told the plaintiff’s lawyer that I required the presence and the arguments by the 2nd Defendant in order to make a proper decision. I ordered that the Counsel for the State be informed and that matter be heard before me on the 16th day of May 1989. On this day no lawyer represented the 1st Defendant and the 2nd Defendant. In view of the proper notice having been given and that the matter had been over several times I decided to proceed with the matter ex parte.

I deal firstly with the claim under the Constitution. The right that is alleged to have been breached is the right to life guaranteed in s 35 of the Constitution.

35(1) No person shall brived of d of his life intentionally except:

(a) &##160;; in exec execution tion of a sentence of a court foll his conviction of an offence for which the penalty of death is prescribed by law; or

(b) ټ a resu resu the use of forceforce to s to such an extent as is reasonable in the circumstances of the case and is permitted by any other law:

(

(ii)&#ii) ټ ie ord e to effect fect a lawful arrest or to prevent the escape of a person unlawfully detained; or

(iii) fe purpose ofressiriot,nsut,nsurrection or a mutiny; or

(iv)>(iv)&#160 & in orderorder to prto prevent him from committing an offence; or

(v0;҈& for the purpo supf suppresppresspressing ping piracyiracy or terrorism or similar acts; or

(c) &ـ as tsul tsult lawf lawful act or warr war.

The deceased was shot dead by the First Defendant who was a as a policeman on duty and the shooting wand tonlawful by the National Court. The fact that the the FirstFirst Defendant has been convicted and sent to jail for 14 years is conclusive evidence of the breach.

Even if the First Defendant had been found not responsible under the criminal law, liability under civil law could still be an issue. This is allowed by sub-s 2 of the s 35.

(2) Nothing in Subsection (1)eb) relieves any person from any liability at law in respect of the killing of another.

Section 57 ofConston giowershe Nal Court and to the Supreme Court to enforce fundamendamental ntal rightrights. See >See John Alex v. Martin Golu [1983] PNGLR 117. Right to life is the most basic right of all of them. The deceased died from the shot fired by the First Defendant who was a member of the Police Force whose very duty was to protect property and lives including the life of the deceased. The deceased’s representative therefore has the right to seek redress under sections 57 and 58 of the Constitution. The types of redress under these sections may vary depending on the nature of the breach. The variation of redress is allowed by the wordings of s 57 (3) and (5). In the instant case, the applicant is seeking compensation. This is especially allowed by s 58 (2) of the Constitution.

58. ҈ Compensation

(2) A person whose righ s ordoreedoms declared or protected by this Division are infringed (including any infringement caused by a derogation of the restrictions sied it X.5internment on te of emergency powe powers inrs in rela relation tion to into internment) is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.

In relation to customary claim, the father of the deceased was called to give evidence. He said:

“In custom if a man kills my child or my son kills another he must pay —kill pigs and give them pots, dogs teeth, pigs teeth and plates (wooden), and other things also. Also shell”.

He said if those who killed a son did not pay any compensation, “we would pay back by killing one of their men”.

He was asked if a son was killed accidentally, for instance a tree was cut without knowing the presence of a son, and the tree fell on him and died, would there be any compensation. He said “he must pay compensation”.

For completeness he was asked by the Court if amount of compensation would be same in a case where a man was intentionally killed by another person as against where a man who had seen some leaves or grass moving and thinking there was a pig and shot an arrow into the bushes and instead of killing a pig, he killed a man. He said in the first example the compensation would be bigger.

Compensation payment is a part of the PNG society for hundreds of years. It is part of the custom. Compensation is paid for deaths, destruction of properties, causing annoyance or ill-feeling. In the accepted terms now the reasons for compensation payment may be punitive, or for restitution for any loss, injury or damages and one other reason which has been allowed by the society to be abused, and misused. That is compensation as a means of restoring social equilibrium. Compensation in its broadest sense, consists of not only payment of goods like pigs, cassowaries, food, and cash nowadays, but giving away women or killing of a relative of the person that killed another person.

In my view customary compensation payment system cannot apply independently of the constitutional frame work and the Legal System accepted by PNG. It is a part of the custom and is regulated by practices and rules of customary law. The customary law is one of the laws allowed to be applied in the country by the Constitution. Section 9 of the Constitution describes all the laws of the Country. No other laws can apply in the country.

9. & THE LAWS:

The laws laws of Papua New Guinea consist of:

(a) ҈ this Cois Constitution

(c)  &; &#160 t60; the Ache of the ParliParliament; and

(d)&ـ҈ Em0; Emergency Regulations; and

(da)&(da) #160; the proalnciws; and (adi>(added by Constitutional Amendment No.Provincial Government, s.2) s.2)

(e) laws made under or adopted by or under this Constitutioany ose lancludinluding subg subordinordinate legislative enactments made under this Constitution or any of those laws; and

(f) ҈&&#160the underlying lang laww,

and none other. (my emphasis)

Schedule 2.1 of the Constitution allows the cuto be adopted, applied and enforced as part of the underlying law.

Sch 2.1  ҈& < RECOGNITEON, OC.,USTOM

(1) ټ&#Subjectbject to Suto Subsections (2) and (3), custom is adopted, aall blied nforcs parthe underlying law. law.

System of compensation payment thet thereforrefore is e is adopted, applied and enforced as a part of the underlying law. But as part of the customary law which is a part of the underlying law, it must be applied subject to the Constitution and other qualifications prescribed in Schedule 2 particularly schedule 2.1 (2) and (3).

(2) ټ Stbsec(1on (1) does does not apply in respect of any custom that is, and to the extent that it is, inconsistent with a Constonal r a se, or repugnant to the general principles of humanity.

(3) #160;&#160  &#An Act of arliParliament ment may:

(a) provide for toe prndf aeadpleading of custom for any purposes; and

(b)&##160;;ټ rte the manner in which, or thor the pure purposesposes for for which, custom may be recognized, applied or enforced; and

(c) &#provide for the resolutiolution of conflicts of custom.

Killing as pay-back, based on the notion of an eye for an eye, anth foooth constonal. It is even wrong under the very section that that plainplaintiff tiff relierelies on s on in this action, namely, s 35. and further it is “repugnant to the general principles of humanity:. See Public Prosecutor v. Apava Keru [1985] PNGLR 78 also Public Prosecutor v. Sidney Kerua and Billy Kerua [1985] PNGLR 85. In so far as using killing as a sanction for failure to pay compensation it is unconstitutional. I refer to Bredmeyer, J’s decision in Aundak Kupil and Kauke Kensi v. The Independent State of Papua New Guinea [1983] PNGLR 350 at 359 and 362. Giving away women as compensation cannot apply now because it is not only repugnant to the general principles of humanity but it is breach of specific sections of the Constitution. A woman is a person not a property. As a person she has the same rights as a man: section 32(2) for example says:

“Every person has the right to freedom based on law, and accordingly has a legal right to do anything that:

(a) ҈ does noes not injure or ieterfere with the rights and freedoms of others; and

(b) ـ is not prohibited by law,

and no person:

(c) #160; isgoblio d tanyo ing hing that is not requiredaw; a>

160; m prevented from doing anyg anything that that complcomplies wies with the provisions of paragraphs (a) b).Sect7(1) says “Every person he right to the full protection of the law...”

S

Sectioection 55(n 55(1) su1) summarizes it all:

“Subject to this Constitution, all citizens have the same rights, privileges, obligations and duties irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex”.

I am aware that equality of women does not go down well with a traditional PNG man, but he has to accept that, that is the position that he himself through the Constituent Assembly accepted at independence: see Goal 2 paragraph 5

“equal participation by women citizens in all political, economic, social and religious activities”

This leaves the residue of the customary compensation that is not unconstitutional or repugnant to the principles of humanity. How these residuals may be found out must be provided for in an Act of Parliament. An attempt has been made by the Law Reform Commission to have a specific Act passed to deal with customary compensation. For some reason the Parliament did not pass it. I am referring here to the Draft Bill on Customary Compensation Act 1980 (Law Reform Commission Report No 11, Customary Compensation, June 1980). So that the only Act of the Parliament that makes the basis upon which customary compensation can be pleaded and applied is the general Act of the Parliament, the Customs Recognition Act Chap. No. 19.

I think it is an error to assume that customary compensation for death has no limit. This error is encouraged by some on the basis that compensation for death is paid on no fault basis. I think this was a traditional notion throughout the country and that is much alive in certain parts of the country. For instance in the Waghi and Minj area accepted by Bredmeyer, J. in Aundak Kupil and Another’s case. Custom is a growing thing. It’s growth in my view is influenced by many factors. Some factors can be controlled; others cannot be controlled; yet others exist as matters of necessity. First of all the growth is influenced and controlled by formal factors like the restrictions by the constitutional and statutory provisions which I referred to earlier. That compensation payment cannot be allowed to grow out of proportion in the name of custom is clear when looking at the limits that people themselves have put upon their legislative, executive and judicial powers that they have granted to the different arms of the Government under the Constitution. See section 11.

11. Coution, etc., as Supreme reme Law

This Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, and, subto Se 10 all acts (whether legislative, executivcutive or e or judicjudicial) ial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.

Unless the Constitution is amended, the Parliament cannot enact a law authorizing a relative of a person killed to kill a relative of the killer in return. The Executive cannot suddenly decide in a cabinet meeting to legitimate that killing. No court can pronounce that act of killing legal because it is part of the tradition.

It may be argued that strictly because customary law is not a written law and hence customary rules and practice as to compensation payment cannot be subject to s 10 of the Constitution. This may mean custom as growing and changing thing may grow in any direction because it cannot be subject to s 10. That this cannot be so is clear in view of the peoples acceptance of the Constitution. “WE DO NOW DECLARE THEREFORE:

that we, having resolved to enact a Constitution for the Independent State of Papua New Guinea AND ACTING through our Constituent Assembly on 15th August 1975 HEREBY ESTABLISH, ADOPT and GIVE TO OURSELVES this Constitution to come into effect on the Independence Day, that is 16 September 1975.

Customary compensation, while remaining a traditional notion, changes because of many, many other influences. So that when those influences change, custom may also change. The no fault customary compensation payment arose from a necessity to restore order and relationship between the relatives/clan of the person killed and the relatives/clan of the person who killed the person. In my view the necessity arose because the tribal systems or clan system did not allow for any independent and higher authority to impose orders or sanction upon the wrongdoers. It is like in international law where all sovereign nations have equal status but despite the modern idea of the world Government, the United Nations, and the regional organizations some of which have their own courts, most of the individual countries attempt to keep friendly relations by observing so many practices between them. Many of them have incorporated the practices into bilateral agreements or multilateral agreements out of necessity.

In PNG, people have given their executive power to the Executive which has police to maintain law and order. They have given their legislative powers to the Parliament to make laws for them. And they have given their judicial powers to the Courts. In my view therefore the responsibility to restore order and relationship between the clan of the man killed and the man that did the killing and his tribe are well in the hands of the three arms of the Government. In the lower or village levels are village courts which have wide powers to maintain law and order and restore strained relationships. Many times relationships are distorted by dispute over women. To a large extent the Adultery and Enticements Act 1988 now provides for the means of restoration of restrained relationships in this respect. In relation to distribution of properties of a dead man, Wills, Probate and Administration (Amendment) Act 1987 provides the means of settling disputes as who may be entitled under a relevant custom. Compensation for death can be claimed under the Constitution like the plaintiff is doing in this case.

I think that compensation based upon no fault sytem can only be legitimate on the basis of mere loss of life itself. For any death there is a loss of life irrespective of whose fault it is. The notion has already found its way into various statutes, for example Motor Vehicles (Third Party Insurance) Basic Protection Compensation) Act Chap. No. 296. The preamble of the Act speaks for itself:

“....for the speedy payment of limited amount of compensation to the dependants of persons whose deaths are directly or indirectly attributable to the use of motor vehicles, without regard to any concept of negligence, and for related purposes” (my emphasis)

A life cannot be valued in terms of any property, whether be cash, pigs or cassowaries. Anything paid is a token only. By our Constitution all lives are equal. They are not graded according to gender, social or official status. Nor are they graded according to race or region. See s 55(1) of the Constitution cited earlier. The amount of compensation paid for loss of life must be equal whether a person is a man or woman, big man or little man. Whether he is from highlands, coastal or Islands. The amount under the legislation I have referred to may be too low but that could be raised if the Parliament thinks it is necessary to do so.

It is my strong view that only after the payment for the loss of life then other losses should come into consideration. Those losses include economic and other usual losses if any suffered by the immediate family, and the loss by the subclan or clan for social, economic (if any) contribution by the deceased and loss of leadership where a charismatic or an energetic person has been killed. There are already numerous precedents for working out actual losses. The courts have also recently introduced general type of loss for which there is no evidence of any specific economic loss but payments can be made, Make Kewe v. Thomas Kudjip [1986] PNGLR 279, Kaka Kapun v. PNG [1980] PNGLR 557.

Ultimately, there is no place for any outrageous demand for compensation for any death because there is no legitimate reasons existing in custom. Those who demand outrageous compensation are apparently demanding it from another person as a punishment for killing a relative. They are demanding it out of greed and arrogance. While custom is relevant it cannot replace any specific statute on any subject. For instance unless a person is charged under a Criminal Code for killing someone, no punishment can be imposed under custom because that is a breach of section 37(2) of the Constitution:

(2) &ـ Except,cept, subjesubject to any Act of Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not de by, he penalty for whor which iich is not prescribed by, a written law. see Acting Public Solicitor v. Uname Aumane [1980] PNGLR 510.

I am conscious that my view could be interpreted as anti customary compensation. That would be unfortunate. No, my view is that a claim for customary compensation must be made within the constitutional frame work of the country. There is only one PNG society. That society cannot accept the Constitution as the supreme law of the country while on the other hand does anything it likes in the name of custom. I think that this is acknowledged by a man who has a strong view on custom and has done so much in that respect. He has been over turned by Supreme Court in some aspects of his view (see Acting Public Solicitor v. Uname Aumane). But I refer to his acknowledgement that custom must be subject to the Constitution in The State v. Tendi Kalio Ulo [1980] PNGLR 350 at 359. His Honour the Acting Justice Narokobi said:

“The formal definition of the underlying law in the context of custom is simply that it is the body of law, practices, customs and usage of all the indigenous inhabitants of this country, from wherever they emerge, but are prevailing and acknowledged by a given community of people at the time of the offence.

The nature of that underlying law, that is to say, its full scope, its utility and application, depends on the constitutional criteria and on the circumstances surrounding a particular case”.

All the laws in PNG are described and listed in s 9 of the Constitution that I cited earlier. On the top of the list, (a), is the Constitution. At the bottom of the list (f) is the underlying law. The underlying law includes custom. Together with sections 10 and 11 of the Constitution, they make all other laws subordinate to the Constitution. Therefore they must comply with the Constitution. When they are applied, construed or enforced they must be done so subject to the Constitution.

In the case before me apart from the claim for compensation under the Constitution, the Plaintiff has claimed customary compensation and has given evidence on custom to support his claims. He has established that compensation is payable in respect of death caused by another person. He was proven that liability to pay compensation does not necessarily depend upon any fault. But the amount of compensation may depend upon whether the person caused the death was at fault. He recognizes that killing another person as payback is no longer accepted.

Although fault is not relevant for compensation payment for death in this case the plaintiff has extra help from the fact that the person who fired the shot and killed the deceased was found guilty of intentionally killing the deceased.

I am satisfied that the First Defendant is liable under the Constitution for breach of s 35 of the Constitution as well as liable under the customary law for the death of the deceased. I also find that the Second Defendant is vicariously liable for the acts of the First Defendant.

Lawyers for the Plaintiff: Morobe Provincial Legal Officer

Counsel: M Zurenuoc

Lawyers for the Defendants: State Solicitor

Counsel: Nil