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Yabanoya and 93 Others v Independent State of Papua New Guinea [1999] PGNC 21; N1851 (19 April 1999)

Unreported National Court Decisions

N1851

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS. 31/95
LABI YABANOYA AND 93 OTHERS
-V-
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Lae

Sakora J
23 November 1995
19 April 1999

Counsel

Mr G. Langtry for the Plaintiffs

Mr C. Makail & Ms Tabe for the State

DAMAGES - Police raid on village - Burning and destruction of houses and contents - Seizure and killing of animals - Destruction of food and cash crops - No direct independent evidence - Problems of proper valuation - Conservative estimation.

19 April 1999

SAKORA J: Mr Labi Yabanoya sued the Independent State of Papua New Guinea on behalf of himself and members of Kemeyu villages in the Eastern Highlands Province for damages arising out of the conduct of a police operation on 6 July 1994 at Kemeyu village, in the Okapa District of the province, under the leadership and superintendence of two officers of the Royal Papua New Guinea Constabulary (RPNGC), namely Chief Inspectors Simon Kauba and Mondie of the Goroka Police. It was alleged that some 100 police personnel were involved in the operation which has been described as a "raid" in the allegations.

The statement of claim indorsed on the Writ of Summons alleged that the two officers "led about 100 other policeman (sic) in to the plaintiff's village and destroyed and damaged their properties and goods by burning with fire cutting down with bush knifes (sic), kicking with boots and sticking with sticks and/or riffle (sic) butts." In consequence thereof, it had been alleged, the plaintiffs had "lost the value (sic) of their said properties and goods and have suffered loss and damages".

By the operation of the National Court Rules (NCR) and law, liability of the State had been determined, if only by default, by the Court ordering the entry of default judgment for the plaintiffs and the matter came before me for assessment of damages on 23 November 1995. The State's written submissions were not received until 14 February 1996 (by facsimile). The default judgment had been entered on 24 March 1995.

On behalf of the plaintiff in his individual and representative capacity, Mr Yabanoya gave sworn evidence on the nature and extent of the damage(s) caused, and suffered or incurred. As well, four (4) "exercise books" were tendered and admitted into evidence (Exhibits "A1", "A2", "A3" and "A4"). These specified the number of houses and list of personal properties that were alleged to have been destroyed by the policemen on that raid. The Statement of Claim listed a total of 94 villagers (including the plaintiff himself) whose lives and properties were affected, it was alleged, by the police operation. Each of the claimants had listed against his or her name the quantity and value of each item of property that was alleged to have been lost or damaged (or destroyed) as a direct result of the actions of the 100 or so policemen involved.

The plaintiff, in his sworn oral evidence, said that he had gone to each of the householders in the affected village of Kemeyu, interviewed them and compiled a list of their losses. And these were documented in the four (4) exercise books which became Exhibits "A1" to "A4" inclusive. The information and details in these books in turn formed the basis of the particulars in the Statement of Claim indorsed on the Writ of Summons.

After the police raid the village elders asked the plaintiff to help by investigating what had happened. He walked around the village, going from household to household, interviewing people in these, taking down their statements as to what damage(s) they had suffered at the hands of the police. The villagers themselves gave him the details of their losses and he recorded these, firstly on paper as he interviewed, transferring these to the four (4) exercise books later (Exhibits "A1" to "A4" inclusive, supra).

These interviews, this investigation, took place some three days after the raid. The plaintiff himself lives in the village. About 300 people live in the village. It was Mr Yabanoya's evidence that the police destroyed half of the village.

It is noted that the information, the details, of the alleged losses are specific as to the quantity and value of the various items of property. These include general household goods such as crockery and cutlery, and other domestic kitchen utensils, beddings, items of clothing of all forms, tools and other implements for gardening and building, books, domestic and other animals, money in cash, tree and other crops, and garden produce etc.

As well, substantial structures in the village, such as domestic houses, either of permanent or the usual rural bush materials, were listed and approximate valuations given, and claimed as being destroyed or damaged in the raid. The plaintiff, in his sworn oral evidence, said that there were two types of houses in the village that had been affected by the raid. And these were, firstly, the ones of bush materials, that were predominately of kunai grass. Secondly, there were those few houses of permanent materials, such as those with roofing irons (corrugated) and sawn timber.

Of these houses, the plaintiff was asked (in cross-examination) how many houses there actually were before the raid. He answered as follows:

Don't know the exact number, there were many, but I do know those that were burnt down.

When asked as to how many houses were of permanent materials, Mr Yabanoya responded that there were about six. The Statement of Claim indicates sixty seven (67) houses of bush materials (generally described as "kunai houses"), and eight (8) of a permanent nature. This then gives a grand total of seventy five (75) homes that were alleged to have been destroyed or damaged. Four of the villagers claimed an extra (second) house of bush materials for compensation.

In relation to the allegations of slaughter or taking away of animals, it was the evidence of Mr Yabanoya that these included domestic creatures such as dogs and cats, as well as farm animals such as goats, pigs and chickens. As for cash crops and other tree crops, the plaintiff said that banana plants, coffee trees, tanget trees and forest trees were cut down or destroyed. All of these were itemised in the Statement of Claim. Mr Yabanoya had said that he obtained the assistance of officers of the Department of Primary Industry (DPI) in the area for the estimates of the value of these various animal and vegetable items. The total amount claimed by way of damages in respect of the plaintiff and the 93 other affected villagers that he represented, for their suffering and loss, was K328, 884.68.

Mr Yabanoya was the only witness called in this trial. Thus, there is no independent evidence before me on the costs or value of the various items of property, both personal and real, claimed as being the targets directly of the actions of the members of the RPNGC during their operation in question. This is noted in the context of a rural tribal community where keeping of personal records such as receipts for purchases of trade store goods, and costs or valuations (by professionals) on certain substantial assets are non-existence. In this respect it must be said that, in circumstances such as that before me, one cannot take photographs of and assess something that is destroyed or taken away, and, therefore, not in existence, at least not in its former state, as submissions on behalf of the State seem to suggest. A great deal of guess-work is, thus, necessarily involved, and that is all that is available to the Court by way of evidence.

It is not without consequence to note that the plaintiff here has had comparatively more advanced formal education and employment, having completed Gr 9 at High School and serving in the RPNGC. He then served as a member of the National Parliament (MP) for one term (5 years). As a serving member of the RPNGC he performed the duties and functions of a Police Prosecutor before the lower courts. This personal background is probably why the elders of the village requested his assistance after the raid.

In this very serious and onerous task of assessing damages in respect of the various claims here, I have had the benefit of discussions (and urgings) on the relevant case law in this jurisdiction from both counsel. And I have, thus, had the opportunity of considering these in my assessment.

For the practical purpose of assessing damages, the various claims enumerated under the plaintiff's Statement of Claim can conveniently be considered under three (3) main headings or categories: Houses; Personal Properties; Food Gardens and Cash Crops. And I do so in the following manner:

1. ҈&<;< H60; HOUSES:

tae Statement of Claim listed a total of 75 houses destroyed or damaged (i.e., 67 of bush materials and 8 of perm consion).Stateconceded a total of 65 resideesidentialntial stru structures affected.

The claims inms in respect of this has been for the consistent amount of K500, a figure considered appropriate for bush-material houses without the benefit of proper professional valuation: see Woods J. in Aimon Aure & Ors. -v- Captain Peter Boko and The State (unreported N 1346). The learned trial judge there was considering claims arising directly from a joint Defence Force and Police raid at Gunagi in the Sinasina area of the Simbu Province. Personal and other properties and houses were destroyed or burnt down in the combined operation. His Honour said this:

However, I felt that the general valuation of the village houses was far larger than the court has been open to accept in recent years. In a number of cases and where appropriate government officers have given evidence, it has been established that the value of the normal village house is K500 to K600. I therefore cannot now accept a value of K1500 for the standard village bush material house and I have accordingly reduced the amount to be awarded for each village house to K700. In some instances where a house with an iron roof or louvre windows has been claimed I have allowed for a larger sum for the value of the house.

In relation to the claims for houses of permanent materials and structure, the learned judge said this of one of them:

There has been a claim by Andrew Eneme for the loss of a substantial permanent house. In his claim to the coroner and in the writ before this court he claims K35,000 for this house. There is evidence from the District Manager at Sina Sina (sic) that the house could be worth K60,000 and there are photographs submitted of the burnt out shell of the house. On that evidence I will accept the claim of K35,000 for the house.

In the case of Peter Wanis -v- Fred Sikiot and the State (unreported N 1350) my brother Woods J. had another opportunity to consider the valuation urged upon the count on behalf of the claimant/plaintiff, in the absence of any independent evidence of proper valuation. He then settled upon the amount of K12,000 as a conservative estimate, saying:

First he claims for a permanent house. There is no evidence apart from his assertion and a photograph of a blackened site as to the nature and the standard of this building. Normally when a substantial building is destroyed by fire one usually gets an insurance assessor in to assess the damage. Here the plaintiff has brought no independent evidence as to the standard of this house. There would be competent officials or government officers who could have supported or given some estimates of the value of the building. It is not enough to just assert an estimate, it must be supported. So going on the photos of the site I can only give a conservative estimate of such values for the buildings of K12,000.

And basically for the reasons given (supra) as to personal records, and other factors inhibiting an ordinary villager from seeking justice, such as lack of knowledge as to the right to sue or claim, and lack (or absence of opportunity) of access to legal advice and representation, estimates are the only information available to the court. To insist, as the learned counsel for the State does here, on corroborative independent evidence in such circumstances place access to justice way beyond the reach of ordinary people. And with dwindling or non-existent government funding and services these days, to expect any assistance from government officers to gather the necessary information and to mount legal actions against the State would be analogous to trying to get "blood out of stone".

The claims in respect of homes of permanent materials have been variously asserted as being between K1200.00 and K2894.00. In respect of bush material homes, K500.00 has been the amount claimed (supra). This figure is, in my respectful judgment, very reasonable, considering the absence of other evidence, either corroborative or to the contrary. It will be noted that where two houses of bush materials (for a single claimant) have been claimed, the figure of K1,000.00 is asserted (which of course is double the consistent amount of K500.00).

Thus, in respect of all the claims for loss of bush-material homes under this head, the judgment of this Court is that the sum of K500.00 be the sum assessed as being reasonable to compensate the sixty three (63) villagers affected. So that, multiplying K500.00 by 67, the total sum arrived at is K33,500.00. A list of the 63 claimants in this category are particularised in the Statement of Claim.

As noted above, the "estimates" for permanent structures ranged between K800.00 and K2,894.00. Greatly assisted, respectfully, by the estimations in previous claims, in the absence of proper valuation and direct evidence thereof, I am satisfied that there is nothing before me to suggest that I should not award the amounts claimed. Contrasted with sums asserted in previous claims dealt with by the National Court (and discussed, supra), the amounts of the eight (8) claims are considerably less.

It has been the State's contention that, in the absence of independent valuation of the extent of damages(s) the Court should award an average figure of K1500.00 for each claim, making a total of K12,000.00 (for the 8 houses) in this category. If I were to accede to the State's submission, it would result in five (5) of the claimants being awarded sums considerably less than their claims; in one instance, by as much as approximately K1400.00. And three (3) claimants would receive more than their asserted claims, one of them by as much as K700.00.

Even mindful of the need to deal in "conservative estimation", it is the judgment of this Court that claimants should be awarded their individual amounts as asserted in the Statement of Claim. And I do so as follows:

· ҈ Seatifa - K 1, K 1,200.0000.00

· &##60;&<; A60 Manosa - sa - 1,60/p> <83;&##160;;ټ&##160; Bika Afayo - 2,216p>

>

>

·· < &160; t&##160; Samuel muel a - 200

·&#160 ـ &# 60;;otannota 00.00

· ;ټ  d Ani Tagione - 800.0000.00

·· ټ &<ya 6eya Oe - 100

· ҈ &#Total - K13,210.00