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Tipaiza v Yali [2008] PGNC 129; N3472 (10 September 2008)

N3472

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1555 OF 2004

JOE TIPAIZA AND JAMES HELA PORA
FOR THEMSELVES AND ON BEHALF OF OTHER
FORMER RESIDENTS OF THE
FINSCH ROAD-HUMANDE ROAD SETTLEMENT
Plaintiffs

V

JAMES YALI,
GOVERNOR, MADANG PROVINCE
First Defendant

BUNAG KIUP,
CHAIRMAN, MADANG PROVINCIAL GOVERNMENT
LAW AND ORDER COMMITTEE
Second Defendant

ANTHONY WAGAMBIE,
COMMANDER, TASK FORCE GOROKA
Third Defendant

SAM INGUBA,
COMMISSIONER OF POLICE
Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Madang: Cannings J
2008: 15, 16 May, 10 September

JUDGMENT

DAMAGES – breach of court order – unlawful destruction of properties by police and other agents of the State – squatter eviction exercise – plaintiffs claim general damages for loss and destruction of properties and damages for breach of constitutional rights.

A provincial governor enlisted the support of the Police Force to carry out a squatter eviction exercise, which entailed forced removal of people in a squatter settlement and destruction of their houses and personal properties. It was carried out contrary to an order of the National Court, which had stayed the exercise. The squatters sued the governor and a number of other parties, including the State, claiming damages for loss and destruction of their properties and breach of their constitutional rights. The State was found liable by entry of default judgment. A trial was held to assess damages.

Held:

(1) There was insufficient evidence in full support of each claim but, on the other hand, the plaintiffs proved that they incurred substantial losses and destruction of their properties. Each claim was discounted by 50% to arrive at an award of general damages.

(2) The claim for breach of constitutional rights was vague and inadequately particularised so no award of damages was made.

(3) Each claimant was awarded interest on the amount of general damages, calculated at the rate of 8% per annum from the date of the eviction exercise to the date of judgment.

(4) Total damages awarded was K1,997,631.14; total interest awarded was K926,900.84; the total judgment sum being K2,924,531.98.

Cases cited

The following cases are cited in the judgment:

Albert Baine v The State (1995) N1335
Jonathan Mangope Paraia v The State (1995) N1343
Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Peter Wanis v Fred Sikiot and The State (1995) N1350
Tipaiza v Yali (2006) N2971
Tipaiza v Yali (2006) N3178
Yange Lagan and Others v The State (1995) N1369
Yooken Paklin v The State (2001) N2212

TRIAL

This is a trial on assessment of damages.

Counsel

P Kunai & B Waipek, for the plaintiffs
No appearance for the defendants

10 September, 2008

1. CANNINGS J: This is an assessment of damages against the State, which has been found liable for the unlawful actions of the police in carrying out a squatter eviction exercise.

2. In early 2000 the Madang Provincial Government started planning the exercise for Madang town. In May 2000 a memorandum of agreement was signed by the provincial government and squatter representatives. This set out how the eviction issue was to be dealt with. A distinction was drawn between genuine settlers (those with jobs or businesses) and those considered non-genuine (people not gainfully employed).

3. In late 2002 a large squad of police was brought in from outside Madang and deployed to evict groups of people at different settlements around the town. The early phase of the eviction exercise was focussed on the Finsch Road-Humande Road settlement, in the Newtown area, occupied mainly by people from the Tari area of Southern Highlands Province. On Tuesday 19 November the provincial government gave them seven days notice to leave. They were not consulted on this, and that seemed to breach the May 2000 MOA.

4. The squatters engaged a lawyer and on Monday 25 November the National Court in Waigani made an order, putting the eviction exercise on hold. It was served immediately on the provincial government and the police.

5. However, by Tuesday 26 November 2002, the police had moved in to the Finsch Road-Humande Road settlement. They forcibly removed hundreds of people who had been living there. Then they set fire to their houses and personal properties.

6. In 2004, 220 former residents of the settlement, led by two of their big men, Joe Tipaiza and James Hela Pora, brought a representative action against the then provincial governor, James Yali, and a number of other parties including the State. They claimed damages for loss and destruction of their properties and breach of their constitutional rights. The State, represented by the Solicitor-General, failed to file a defence to the claim.

7. In February 2006 I refused a motion to enter default judgment and gave the State more time to file a defence. I was not satisfied that the plaintiffs’ original statement of claim disclosed a clear cause of action (Tipaiza v Yali (2006) N2971).

8. In August 2006 Davani J granted leave to the plaintiffs to amend their statement of claim (Tipaiza v Yali (2006) N3178). This made the cause of action much clearer. But still the State failed to file a defence.

9. In October 2007 the plaintiffs moved another motion for default judgment. This time I upheld it. I found the State vicariously liable, as fifth defendant, for the unlawful action of the police, with damages to be assessed. The police action was unlawful as it violated the National Court order of 25 November 2002. It was also in breach of the May 2000 MOA, which required the settlers to be consulted before being evicted.

10. The case against Mr Yali and Bunag Kiup, the then chairman of the provincial law and order committee, was discontinued in February 2008 (both of them had filed defences). The case against Anthony Wagambie, the senior officer of the Police Force in control of the eviction exercise, and the then Commissioner of Police, Sam Inguba, has not been pursued.

11. This judgment is confined to an assessment of damages against the State.

12. The plaintiffs are claiming:

• general damages for loss and destruction of property of almost K4 million;

and

• damages for breach of constitutional rights, K220,000.00; being
  
• a total damages claim of about K4.2 million, plus interest.
  

THE EVIDENCE

13. Four of the plaintiffs gave oral evidence and 247 exhibits (mostly affidavits by the plaintiffs) were admitted into evidence.

Oral evidence

14. Konmai Kindi (plaintiff No 91) explained that after the eviction, a committee was established to coordinate the claim against the State and the other defendants. He was the committee secretary. He has been a Madang resident since 1997. Most of the houses that were destroyed were semi-permanent. But a number of them, owned by businessmen Joe Tari Tipaiza, John Yula and Andrew Yawale, were permanent dwellings.

15. The settlers did not think of engaging a valuer to assess their losses. Everything happened suddenly and the settlers were scattered.

16. Joe Tipaiza (plaintiff No 196) also came to Madang in 1997. He is a bricklayer by trade. He built three permanent houses at the settlement as well as a fun haus (entertainment centre) and trade store. He had a contract with Coca Cola, distributing soft drinks and other goods by mobile eskies throughout the town. He had been in negotiations with the local authorities to acquire legal title to the land. He was given the impression that it was only a matter of time before he could acquire legal title.

17. John Yula (plaintiff No 216) is another Tari man. He came to Madang in 1976. He runs a PMV business. He had a house, trade store and liquor store at the settlement. He owns a number of rental properties in town.

18. Andrew Yawale (plaintiff No 214) is also from Tari. He had lived in the settlement since 1989. He is an employee of British American Tobacco. He also runs a PMV business. He built a high covenant house in the settlement.

Exhibits

19. Each of the 220 plaintiffs swore an affidavit describing the property they had lost and estimating its total value.

20. Sandy Joe (plaintiff No 66) makes the lowest claim, K620.00, for:

Clothes, including school uniforms

School bag with stationery and exercise books

1 x BMX bicycle (new).

21. Joe Tipaiza (plaintiff No 196) makes the biggest claim, K804,180.00, for:

1 x High covenant double storey residential house with corrugated iron roofing and weather board walls

3 x Bedrooms fully furnished & 1 x living room upstairs

2 x Spacious room downstairs

1 x Permanent round community hall building with corrugated iron roofing and timber walls Fully furnished Floor area = 50m2

1 x Permanent double storey store and entertainment building with corrugated iron roofing and weather board walls Shop and kai bar on ground floor with full stock

2 x Snooker tables & video set on top floor

1 x Permanent poultry house & workshop building

1 x Onqa water pump

1 x Welding machine

1 x Generator (portable)

1 x Electric typewriter

1 x Double door refrigerator

1 x Single door refrigerator

1 x Car stereo (new)

1 x Large deep freezer

1 x Washing machine

1 x Building jack

1 x Air condition machine

2 x Large Radio adjustable speakers

60 x Bricks

Sawn timbers

1 x Gas stove (double burner)

1 x Kerosene stove (double burner)

Furniture (Tables & chairs)

1 x Box carpentry tools box

1 x Wheelbarrow

Motor vehicle parts & accessories plus 1 x 2-litre engine block for Toyota Hilux

1 x Datsun Ute (not running)

5 x Cooking gas bottles (various sizes)

1 x Permanent kitchen house for haus kai with stock

8 x Table fans

Cash inside 2 x snooker tables

1 x Oxy – acetylene welding set

12 x 80 mm PVC pipes at FM length each

Electrical appliances parts & accessories

4 x New rolled barbed wires

1 x Tiling machines

2 x Monier bush tanks

1 x Permanent septic toilet under construction

10 x Coca-Cola push cart with eskies

3 x large wall clock

2 x Calculators

Clothing and bedding

Cooking and eating utensils

Decorations with crafts & artefacts

Records & files (office documents)

3 x Coconut trees

10 x Betel nut trees

2 x Children’s bikes

22. The remaining 27 exhibits were before-and-after photographs of the settlement, newspaper clippings (showing that the exercise attracted a lot of media coverage), business records of some of the plaintiffs and documents intended to show that consideration was being given to formalising the interest of some of the plaintiffs in the land.

HAVE THE PLAINTIFFS PROVEN THEIR CLAIMS FOR GENERAL DAMAGES?

23. The Finsch Road-Humande Road settlement was raided, unlawfully, by the police in late November 2002. The homes and other properties of many people were destroyed. Joe Tipaiza and others had established businesses at the settlement. Several of the plaintiffs had built permanent houses. Of that there is no doubt. But, can it be said that each of the 220 plaintiffs lost property? Can it be accepted that each of them lost the property that they say they lost? How can the value of that property be assessed?

24. In answering those questions, I take into account the following principles for assessment of damages:

• The plaintiffs have the onus of proving their losses on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it (Yooken Paklin v The State (2001) N2212).
  
• Corroboration of a claim is usually required and the corroboration must come from an independent source (Albert Baine v The State (1995) N1335; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331).
  
• The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim (Peter Wanis v Fred Sikiot and The State (1995) N1350).
  
• The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence (Yange Lagan and Others v The State (1995) N1369).
  
• The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available, the court expects to have it. However, where it is not, the court must do the best it can (Jonathan Mangope Paraia v The State (1995) N1343).
  
• The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274).
  

25. It concerns me that there is no independent corroboration of the identity of each of the plaintiffs and the extent of their claims. If there had been an investigation of the incident, soon after it occurred, by an independent body such as the Ombudsman Commission, or perhaps a local church, it would be easier to accept the claims at face value. Some independent person or agency should have been involved and taken down the names of everyone affected and interviewed them. No formal valuations have been provided, and this is another serious deficiency in the evidence, particularly in the case of the claims for destruction of permanent dwellings. No receipts or invoices of any description have been provided.

26. There is, therefore, insufficient evidence in full support of each claim. But, it does not necessarily follow from this that I should regard the claims as bogus or award the plaintiffs nothing. The plaintiffs have proven that the police acted unlawfully, it was a major event in the local community, and it attracted nationwide media coverage. The State has been given ample opportunity to defend the claim. I consider that the interests of justice lie in accepting that each of the plaintiffs should receive an award of damages, which I will discount by 50 per cent to take account of the deficiencies in the evidence.

27. For example:

• the plaintiff with the smallest claim, Sandy Joe, will be awarded K620.00 x 0.5 = K310.00;
  
• the plaintiff with the biggest claim, Joe Tipaiza, will be awarded K804,180.00 x 0.5 = K402,090.00.
  

28. The awards of general damages to all plaintiffs are shown in the schedule at the end of this judgment.

SHOULD DAMAGES BE AWARDED FOR BREACH OF CONSTITUTIONAL RIGHTS?

29. The plaintiffs claim K1, 000.00 each for breach of their constitutional rights. They are saying that the police violated their human rights.

30. This part of their case is poorly articulated. The statement of claim does not specify which rights were infringed. It was only when submissions were made at the trial that it became clear that the right relied on was the right to privacy under Section 49 of the Constitution. That is a reasonable point to argue but I would have thought that the rights of the plaintiffs that were more directly infringed were, apparently:

• freedom from inhuman treatment (Constitution, Section 36(1));
  
• right to the full protection of the law (Constitution, Section 37(1));
  
• protection against harsh or oppressive acts (Constitution, Section 41(1));
  
• freedom from arbitrary search and entry (Constitution, Section 44); and
  
• protection against unjust deprivation of property (Constitution, Section 53(1)).
  

31. The statement of claim should have expressly referred to Section 57 of the Constitution (enforcement of guaranteed rights and freedoms) as a way of properly invoking the jurisdiction of the National Court. Such deficiencies in the pleadings make it difficult for me to uphold these claims.

32. Another problem is that none of the plaintiffs has given detailed evidence of how the police actually removed them, and how the police treated them. The newspaper reports suggest that the police were heavily armed and may have threatened people. Women and children may have been terrorised. These are matters of great concern. But they have not been proven. And it seems that, however badly the police might have behaved, none of the plaintiffs or their family or friends were physically injured.

33. So, for two reasons – poor pleadings and lack of evidence – I refuse the claims for breach of constitutional rights and award nothing.

SUMMARY OF DAMAGES AWARDED

INTEREST

34. I will award interest at the rate of 8 per cent per annum to each of the plaintiffs, on the amount of their damages. This is done under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest is calculated from the date on which the cause of action accrued, 25 November 2002, to the date of this judgment, 10 September 2008, a period of 5.8 years.

35. I calculate the amount of interest by applying the following formula:

• D x I x N = A
  

Where:

• D is the amount of damages assessed;
  
• I is the rate of interest per annum;
  
• N is the appropriate period in numbers of years;
  
• A is the amount of interest.
  

For example, for Sandy Joe:

• K310.00 x 0.08 x 5.8 = K143.84.
  

For Joe Tipaiza:

• K402, 090.00 x 0.08 x 5.8 = K186, 569.76.
  

36. The awards of general damages to all plaintiffs are shown in the schedule at the end of this judgment.

COSTS

37. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.

REMARKS

38. It is regrettable that the office of the Solicitor-General failed to defend this case properly. I gave them ample opportunity to file a defence. Despite that, no defence was forthcoming and default judgment was entered. The State then failed to make an appearance when the trial was held. I understand that there are other claims pending over the 2002 squatter eviction exercise in Madang. These claims should be given much more careful attention by the State.

JUDGMENT

39. I direct entry of judgment in the following terms:

1. damages, payable by the fifth defendant to the plaintiffs, as prescribed by "damages awarded" in the Schedule;
   
2. interest payable by the fifth defendant to the plaintiffs, as prescribed by "interest awarded" in the Schedule;
   
3. being a total judgment sum for each plaintiff, as prescribed by "judgment sum" in the Schedule, to be paid within 30 days after the date of entry of this judgment;
   
4. costs of the proceedings shall be paid by the fifth defendant to the plaintiffs on a party-party basis, to be taxed if not agreed.
   

SCHEDULE

Judgment accordingly.

_____________________________

Kunai & Co Lawyers: Lawyers for the plaintiffs
Solicitor- General: Lawyer for the 5th defendant