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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO 366 OF 2001
BETWEEN
FRANCIS WANDAKI & 79 OTHERS OF MOGE NAMBUKA TRIBE
Plaintiffs
AND
WINI HENAO
First Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
Mount Hagen: Makail, J
2009: 03rd & 19th June
TORT - Negligence - Liability - Onus of proof on plaintiffs to discharge - Alleged police raid - Whether police involved in raid - Alleged destruction and looting of property - Alleged destruction and looting occurred during confrontation between police and rowdy mob of youths - Uncertainty over police involvement - Liability not established on the balance of probabilities - Action dismissed.
EVIDENCE - Slightly two different versions of events - Credibility of witnesses - Logic and commonsense - Contradictions and inconsistencies - Breach of rule in Browne -v- Dunn (1893) 6 R 67 HL - Failure by counsel to lead evidence of bias - Witness not given opportunity to explain side in cross examination - Unfairness - Assumptions - No credible evidence to establish liability.
Papua New Guinea cases cited:
Eriare Lanyat & Ors -v- George Wagulo & The State [1997] PNGLR 253
Kembo Tirima -v- Angau Memorial Hospital Board & The State (2005) N2779
Philip Kunnga -v- The State (2005) N2864
The State -v- Pariake Walara (2008) N3494
The State -v- Jacob Dugura Roy (2007) N3137
Overseas cases cited:
Browne -v- Dunn (1893) 6 R 67 HL
Counsel:
Ms A. Inia, for the Plaintiffs
Ms J. Tindiwi, for Defendants
JUDGMENT
19 June, 2009
1. MAKAIL J: This is a case about an alleged police raid at Kaiwe market located towards the western end of Mt Hagen town along Okuk highway on 1st October 1998 where the Plaintiffs, 80 in total claimed to be victims. They alleged that the police fired tear gasses and shot guns indiscriminately at them and destroyed their market food, betel nuts, mustards, houses, trade stores and goods totaling K667,684.20. The Defendants have denied the claims and a trial was conducted to determine liability and quantum of damages.
LIABILITY
2. The first issue is liability. If liability is established against the Defendants, the next issue is the quantum of damages.
3. From the pleadings in the Statement of Claim in paragraphs 4 to 6 of the Plaintiffs’ action for damages is based on trespass and in the alternative, an action in negligence from paragraphs 7 to 8 of the Statement of Claim. Although the Plaintiffs have pleaded trespass, their counsel has not pursued their claims based on trespass in her written submissions, thus I will not decide this case on trespass. On the other hand, in her written submissions, counsel has made it plainly clear that the claims are pursued based on negligence. Therefore, I will decide this case based on that cause of action. To establish liability, the Plaintiffs need to satisfy the basic elements of the tort of negligence. They are:
1. the Defendants, or a person or persons for whom it is vicariously responsible, that is, the tortfeasor, owed a duty of care to the Plaintiffs;
2. the Defendants or tortfeasors breached that duty, that is, by act or omission the tortfeasors’ conduct was negligent;
3. the Defendants’ or tortfeasor’s negligent conduct caused injury to the Plaintiffs;
4. the Plaintiffs’ injuries were not too remotely connected to the tortfeasor’s conduct; and
5. the Plaintiffs did not contribute to their own injuries, eg by being contributory negligent or voluntarily assuming the risk of injury.
4. See Kembo Tirima -v- Angau Memorial Hospital Board & The State (2005) N2779, per His Honour Cannings J. The elements of the tort of negligence are relevant in this case and must be established on the balance of probabilities before the Court can hold the Defendants liable. Otherwise, the proceeding is unsustainable and maybe dismissed. In this respect, I agree with the submissions of counsel for the Plaintiffs at p 5 of her written submissions that the Plaintiffs bear the onus of proving the elements of negligence on the balance of probabilities.
Parties’ evidence
5. In support of the claims, the Plaintiffs relied upon 81 Affidavits. 80 of these Affidavits belonged to the Plaintiffs whose names appeared in the schedule endorsed to the Writ of Summons filed on 23rd March 2001. These 80 Affidavits are:
8th May 2006 (Exhibit "P2");
8th May 2006. (Exhibit "P7");
8th May 2006. (Exhibit "P8");
8th May 2006. (Exhibit "P9");
8th May 2006. (Exhibit "P10");
8th May 2006. (Exhibit "P11");
8th May 2006. (Exhibit "P12");
8th May 2006. (Exhibit "P13");
8th May 2006. (Exhibit "P16");
8th May 2006. (Exhibit "P17");
8th May 2006. (Exhibit "P18");
8th May 2006. (Exhibit "P19");
8th May 2006. (Exhibit "P20");
8th May 2006. (Exhibit "P21");
on 8th May 2006. (Exhibit "P22");
8th May 2006. (Exhibit "P23");
8th May 2006. (Exhibit "P24");
8th May 2006. (Exhibit "P25");
8th May 2006. (Exhibit "P26");
8th May 2006. (Exhibit "P27");
8th May 2006. (Exhibit "P28");
8th May 2006. (Exhibit "P29");
8th May 2006. (Exhibit "P30");
8th May 2006. (Exhibit "P31");
8th May 2006 (Exhibit "P32");
8th May 2006. (Exhibit "P33");
8th May 2006. (Exhibit "P34");
8th May 2006. (Exhibit "P35");
8th May 2006. (Exhibit "P36");
8th May 2006. (Exhibit "P37");
8th May 2006. (Exhibit "P38");
8th May 2006. (Exhibit "P39");
8th May 2006. (Exhibit "P40");
8th May 2006. (Exhibit "P41");
8th May 2006. (Exhibit "P42");
8th May 2006. (Exhibit "P43");
8th May 2006. (Exhibit "P44");
8th May 2006. (Exhibit "P45");
8th May 2006. (Exhibit "P46")
on 8th May 2006. (Exhibit "P47");
8th May 2006. (Exhibit "P48");
8th May 2006. (Exhibit "P49");
8th May 2006. (Exhibit "P50");
8th May 2006. (Exhibit "P51");
8th May 2006. (Exhibit "P52");
8th May 2006. (Exhibit "P53");
8th May 2006. (Exhibit "P54"):
on 8th May 2006. (Exhibit "P55");
8th May 2006. (Exhibit "P56");
8th May 2006. (Exhibit "P57");
8th May 2006. (Exhibit "P58");
8th May 2006. (Exhibit "P59");
8th May 2006. (Exhibit "P60");
8th May 2006. (Exhibit "P61");
8th May2006. (Exhibit "P62");
on 8th May 2006. (Exhibit "P63");
8th May 2006. (Exhibit "P64");
8th May 2006. (Exhibit "P65");
8th May 2006. (Exhibit "P66");
8th May 2006. (Exhibit "P67")
8th May 2006. (Exhibit "P68");
8th May 2006. (Exhibit "P69");
8th May 2006. (Exhibit "P70");
8th May 2006. (Exhibit "P71");
8th May 2006. (Exhibit "P72");
8th May 2006. (Exhibit "P73");
8th May 2006. (Exhibit "P74");
8th May 2006. (Exhibit "P75");
8th May 2006. (Exhibit "P76");
8th May 2006. (Exhibit "P80"); and
8th May 2006. (Exhibit "P81").
6. I have perused all these Affidavits and must say that their contents are identical with one or two variations. The variations relate to the type of property allegedly destroyed by the Defendants and the value of the property. But otherwise, all the witnesses said that first it was the police who came and fired tear gasses and shot guns indiscriminately at them including other bystanders. As a result, they fled the market, leaving behind their property. Secondly, they said it was the police who destroyed their property. Their property ranged from bags of betelnuts, bags of mustards, cartons of coca cola drinks, dart boards, packets of cigarettes, cartons of eggs, eskies with ice blocks, garden food to fences and buildings (houses and trades stores).
7. Four of the Plaintiffs also gave oral evidence and were cross examined by counsel for the Defendants. They were Steven Ulna, Pius Kunjip, Andreas Kulda and Simon Berem. Much of the questions by counsel for the Defendants centered around firstly, whether the police were the persons who conducted the raid at Kaiwe market, hence destroyed the Plaintiffs’ property and secondly, the value of the property allegedly lost or destroyed. Thirdly, whether the Plaintiffs were able to produce financial documents like bank statements, receipts of expenses etc, to establish the monetary losses.
8. The Defendants called Sergeant Jimmy Peaku (herein "Sergeant Peaku"), who gave oral evidence against the claims by the Plaintiffs. It is his evidence that in 1998, he was the Task Force - Police Response Unit Commander. His role is to response to urgent matters like public unrest, disaster and the likes. He was aware of the alleged police raid that occurred on 1st October 1998. He said that around 30th and 31st September 1998, he was instructed by the First Defendant who was the then Provincial Police Commander of the Western Highlands Province to attend and stop criminal activities at Kaiwe market. He was to hold talks with the community leaders from that area so that they could help the police to stop youths from engaging in criminal activities. In line with this instruction and because he is from that area by virtue of his marriage to a local woman from that area, on 31st September 1998, he went to see Councilor Yak, a councilor and community leader to organize a meeting with the youths so that he could talk to them.
9. The next day, 1st October 1998, at about 5.30 in the morning, he instructed his Second Officer in Charge to get ready and go up to Kaiwe market to talk to the people, especially the youths about the illegal activities. Armed with two loud hailers, they drove up to Kaiwe market and upon their arrival he took charge of the gathering and talked to the people on one of the loud hailers. He told the people, especially the youths to stop illegal road blocks and other criminal activities like selling of alcohol, drugs, snatching of bags and so forth. There were about 20 to 30 people present as it was still early in the morning. These people were sellers and bystanders. None of the community leaders were present because they were still in their houses. The women folks who were selling their market produce and stuff listened attentively to what he was saying but the youths screamed at him and his policemen. They asked why the police had come to the market so early in the morning.
10. He said that the purpose of going to Kaiwe market was not to conduct a raid but to talk to the people about law and order and stop illegal activities that were rampant around that area. He and his policemen went ahead and stopped the market when the community leaders arrived. When they arrived, he was still talking to the people on the loud hailer. The youths then started throwing stones at him and his policemen and the police vehicles. This prompted his policemen to retaliate by firing tear gasses at the rowdy youths to stop them from throwing stones at them and the police vehicles. This lasted about two to three minutes. After dispersing the rowdy youths, he withdrew his policemen and they left. He said that he withdrew the policemen at 6 0’clock in the morning but he remained at the market for about an hour and 30 minutes. Then, he was recalled to see the First Defendant. He returned to Mt Hagen Police Station and reported to the situation on the ground to the First Defendant. He reported that, that his policemen had fired tear gasses to disperse the rowdy mob of youths who had thrown stones at him, his policemen and police vehicles.
11. He further said that at that time, there were two trade stores. One belonged to Moses Murr and the other belonged to Oki Berem, the brother of Simon Berem. These two trade stores had not been destroyed by policemen. After 20 minutes, he received a radio call in his vehicle that youths had set up a road block at Kaiwe market, so he returned to the market the second time and parked his vehicle on the side of road. He approached the youths and told them to remove the road block. They insisted that they get an explanation from him before they remove the road block. He told them that if they had any grievances, they should go and see the police hierarchy. He was there to ensure that there was not going to be anymore trouble.
12. They assured him that they will not set up anymore road blocks. After being assured by the youths, he went straight to Councilor Yak and told him about the youths’ unruly behaviour that morning and the setting up of the road block. Councilor Yak told him that it was his duty to talk to the youths because he (Councilor Yak) had talked to the youths many times before and they had not obeyed him. Councilor Yak told him that the matter was in the hands of the police and he should go ahead and stop the illegal activities.
13. In the course of the day, he traveled up and down Kaiwe market three to four times to check the situation but had not received any information that police had conducted any raid of trade stores, marketing fathers, mothers and children. Even about 5 o’clock that afternoon, as he drove up to the market on the way to the house, he saw no raid or destruction of the market. Three weeks later, he received some information that some policemen looted two stores and raided the market. If the police had looted the market and trade stores, it would not be true because as far as he was concerned and could recall, the police were there to talk to the people about the sale of alcohol, drugs, rape of women and snatching of bags. There were no complaints lodged at his office as far as the alleged raid at Kaiwe is concerned but surprisingly a complaint has been made and he thinks that it could have been made possibly to another division of the Mt Hagen Police Force.
14. Further, if these Plaintiffs’ claims were true, he said that he should have been one of the Plaintiffs because his house is also near Kaiwe market and would have been destroyed by the police during the alleged raid. He has lived in that house for the last 28 years and is still living there. Finally, he said that his wife was assaulted and his properties were destroyed because of his policing duties around that part of town. He became a victim of his efforts in trying to maintain law and order. He said that he had not reported these incidents to the police because he feared that the people would take the law into their own hands.
15. Counsel for the Plaintiffs has urged me in her written submissions to find that the police under the direction of the First Defendant were the persons who raided and looted the Plaintiffs’ property at Kaiwe market between 10 o’clock and 11 o’clock in the morning of 01st October 1998 because it is clear from the evidence of the Plaintiffs that the policemen were the ones responsible for the Plaintiffs’ losses. Secondly, the police had acted within their scope of duties when they followed the command and direction of the First Defendant to raid Kaiwe market, hence looted and destroyed the Plaintiffs’ property. Liability should be entered against the Defendants and the Court should proceed to assess damages. On the other hand, counsel for the Defendants has submitted that whilst it is conceded that the members of the police were present at Kaiwe market on the morning of 01st October 1998 led by Sergeant Peaku, the Plaintiffs have failed to establish that the members of the police had looted and destroyed the Plaintiffs’ property.
Issue
16. From what the Plaintiffs have said in their evidence and from what the Defendants, through Sergeant Peaku has said in his evidence, there appears to be two slightly different versions. The Plaintiffs alleged that the Defendants were responsible for the destruction and looting of their property on 01st October 1998 when they fired tear gasses and shot guns indiscriminately at them, causing them to flee the market. After they had fled, the police destroyed their property. On the other hand, the Defendants said that they had not destroyed the property because they had not conducted a raid at that time. Therefore, I do not think the issue is whether the police had acted within the scope of their duties but one of, whether the policemen under the command of Sergeant Peaku had looted and destroyed the Plaintiffs’ property at Kaiwe market.
17. This is where I find the submissions of counsel for the Plaintiffs at pp 5 and 6 of her written submissions and the case of Eriare Lanyat & Ors -v- George Wagulo & The State [1997] PNGLR 253 referred to therein in respect of the question of policemen acting within their functions and duties of no relevance. In other words, counsel for the Plaintiffs had devoted bulk of her time in the written submissions to an issue that is a non issue in this case, hence there is little to no submissions in respect of the issue at hand. That is, whether the Plaintiffs have established by appropriate evidence that the policemen destroyed and looted the Plaintiffs’ property on the date in question.
18. That is the issue, and upon a review of the evidence of the Plaintiffs, their evidence suggested that it was the members of the police force who looted and destroyed their property on the morning of 01st October 1998. The four witnesses, Steven Ulna, Pius Kunjip, Andreas Kulda and Simon Berem who gave oral evidence in addition to their Affidavit evidence and were cross examined by counsel for the Defendants said that the police raided and destroyed their property between 10 o’clock and 11 o’clock in the morning. They said that the policemen came in vehicles and without warning, fired tear gasses and shot guns at them. As a result and in fear of their lives, they fled the market leaving behind their property and the police looted and destroyed them.
19. For those remaining 76 Plaintiffs who had not given oral evidence but simply had their Affidavits tendered into evidence because counsel for the Defendants had not given notice to cross examine them on their Affidavits, it is their evidence that it had been the police who conducted the raid by looting and destroying their property on the morning of 01st October 1998. For example, in his Affidavit (Exhibit "P1"), the principal Plaintiff Francis Wandaki said and I quote:
"1. I am the Principal Plaintiff in the within proceedings and am entitled to depose to the contents of this my Affidavit.
2. On the 1st October 1998 more than twenty (20) policemen based at Mt Hagen came in police vehicles to Gumas villages looking for people who were taking part in selling dark rum.
3. Whilst present at Kumas Village, the policemen proceeded to loot, and burn down houses, destroyed market goods, both in the trade store and out in the main market.
4. The market was mainly used for trading betel-nut, cigarettes, food and playing of dart board games.
5. At that time, I was selling 32 bags of betel-nut which I bought in Popondetta.
6. The description of my items is set out as follows:
| No | Description of Items | Estimated Values |
| 1. | 9 x Betel nut bags @ K1,100.00 each | K9,900.00 |
7. I have not sold the remaining 9 bags when the raid occurred.
8. The bags were 50 kg stock feed bags and if I were to sell the remaining 9 bags, I would have earned K9,900.00.
9. As a result of the illegal raid, I lost 9 bags of betel-nut which would have earned me K9,900.00 is sold.
10. Therefore, I now seek remedy from the state because of negligence of its servants/agents in the manner in which they conducted the raid; this resulted in my loss of income of K9,900.00".
20. As for the Defendants’ evidence, a brief review of Sergeant Peaku’s oral evidence shows that, the police were not responsible for the alleged raid. They had not looted and destroyed the Plaintiffs’ property at Kaiwe market on 1st October 1998 because first, police had not raided Kaiwe market that morning. Secondly, they had gone there to talk to the people, especially the youths about law and order because there had been a lot of criminal activities around that part of town. Thirdly, the police had fired tear gasses after the rowdy youths had thrown stones at them that morning. Finally, he had monitored the situation through out the day by traveling to and from Kaiwe market and had not seen any raid carried out by the police at the market. If there had been anything, it was only a minor incident that occurred around 10 o’clock in the morning and that was the youths’ set up of an illegal road block to vet their disgust and anger at the police for going to the market earlier that morning to call them to stop criminal activities like rape, sale of alcohol, drugs, bag snatching, and assault and harassment of people, especially the female folks.
Analysis of evidence
21. The two slightly different versions of the events that had occurred that day present a situation where the Court has to decide which version it should accept. This then will require the Court to assess the demeanour of the witnesses who came forward and testified for and against the Plaintiffs’ claims. It will also depend on logic and common sense. It will depend on any inconsistencies and contradiction in the evidence of each witness and with one another. I have had the benefit of seeing four of the Plaintiffs give evidence and subjected to cross examination. I have also had the benefit of seeing the only witness for the Defendants Sergeant Peaku give oral evidence and subjected to cross examination. I think not all told the truth even though each had sworn an oath on the bible to tell the truth. They were protective of each others’ case.
22. But the first matter that is apparent during the trial is that, all the Plaintiffs and the only witness for the Defendants, Sergeant Peaku agreed that the police fired tear gasses at the youths at Kaiwe market that day. Whether other shot guns were fired and whether the police had fired at the rowdy mob of youths that day are matters for further consideration and appropriate findings of facts. Further, whether it was at 6 o’clock or 10 o’clock in the morning is another matter. What is important is that police fired tear gasses at Kaiwe market on 1st October 1998. The second matter that is also apparently clear during the trial is that, the Plaintiffs who had given oral evidence and were cross examined on their Affidavits have been unable to say if the police were the persons who had looted and destroyed their property. This is a critical matter because it goes to establishing liability of the Defendants.
23. For the four Plaintiffs who gave oral evidence in addition to their Affidavits, I note none of them had been able to say precisely that the police had looted and destroyed their property during cross examination by counsel for the Defendants. For example, Plaintiff Simon Berem gave the following answers to the following questions in respect of this issue:
"Q: Witness, you told the Court that you fled when you heard gun shots and tear gas?
Ans: Yes.
Q: And were not near your trade store?
Ans: We ran up the mountain.
Q: It took you sometimes to return to the market, is that correct?
Ans: Yes, when I saw Policemen assaulting people I fled away.
Q: And you wouldn’t have known who took your store goods?
Ans: Market is a busy place so everybody fled. I did not see who took them".
24. Prior to the Plaintiff Simon Berem giving his oral evidence, the Plaintiff Pius Kunjip gave evidence and I also remember asking the same questions to him to clarify the issue when I asked these questions and received the following answers:
"Q: Did you see a policeman or a number of the policemen destroying your 22 bags of betelnuts with your own eyes?
Ans: I could not see because my eyes were buggered, so covered them and ran away.
Q: So could it possibly be other fleeing people at the market who destroyed your 22 bags of betelnuts?
Ans: They may have taken them with them. I did not see. They may have done that".
25. Following the Plaintiff Pius Kunjip, the Plaintiff Andreas Kulda had also been cross examined as to his knowledge or recollection of who destroyed his bags of betelnut and cartons of coca cola and he gave the following answers:
"Q: Witness, you told the Court that you fled when the police fired shots?
Ans: Yes.
Q: You returned 2 hours after all the shots and teargases finished, is that correct?
Ans: Yes.
Q: So wouldn’t know who got your betelnuts and 14 cartons of coke, is that correct?
Ans: Yes.
Q: It could have been anyone amongst the crowd at the market?
Ans: Yes, because of that raid, all my things were destroyed. That’s why I come to Court."
26. From these Plaintiffs’ answers in cross examination, it is clear that they are not certain if the policemen had destroyed and looted their property. But they are certain that it was the policemen who fired tear gasses and shots from shotguns at them.
27. Sergeant Peaku said that the policemen had fired tear gasses. The Plaintiffs Steven Ulna, Pius Kunjip, Andreas Kulda and Simon Beren also confirmed in their oral evidence that policemen had fired tear gasses but also said, shot guns. As a result, the Plaintiffs were blinded by the smoke from the tear gasses and fled the market. In my view, given the chaotic state of affair at that time, they would not have seen the police destroy their property even though the Plaintiffs said that it was the police who instigated the commotion. It is no wonder the Plaintiffs have not been able to precisely say if the police had destroyed their property.
28. In my view, it is one thing for the Plaintiffs to say that the policemen fired tear gasses and shot guns indiscriminately at them but it is another thing to say that the policemen looted and destroyed their property. In other words, the Plaintiffs must establish with certainty that the policemen looted and destroyed their property. It is not sufficient for them to say that the policemen fired tear gasses and shot guns at them indiscriminately and assume that the policemen then looted and destroyed their property.
29. If I were to accept the evidence in that form, it would be an assumption or a guess. When such evidence is considered in the context of policemen attempting to disperse a rowdy mob of youths, the possibility of opportunists taking advantage of the chaotic situation becomes a real possibility. That is, the possibility that opportunists destroyed and looted the Plaintiffs’ property is very real.
30. This is where the evidence of Sergeant Peaku is of relevance. Sergeant Peaku has refuted the Plaintiffs’ evidence that the police had looted and destroyed their property. I observed him during his evidence in chief and must say that I was very impressed. He was confident. In cross examination, he gave clear answers. He was also forthright with his answers. He was neither evasive nor hesitant when he answered questions during cross examination. He maintained through out cross examination that there was no raid conducted by policemen at Kaiwe market on that day but admitted that there were policemen there and that they were there to talk to the people about maintaining law and order at Kaiwe market after receiving numerous complaints from the public of increase in criminal activities around that area. Generally, I find him to be a credible witness and will accept his evidence.
31. But at the same time, I think he down played the enormity and gravity of the policemen firing of shot guns and tear gasses. I will return to discuss this point later on in the judgment, but first, I wish to comment on the Plaintiffs’ counsel’s submissions on the evidence of Sergeant Peaku. In accepting the evidence of Sergeant Peaku to the extent that policemen were present at Kaiwe market in the early morning of 01st October 1998 to conduct a law and order awareness campaign, I am not persuaded by the submissions of counsel for the Plaintiffs that I should not believe and accept the evidence of Sergeant Peaku because of:
"1. His Unjustified Presence in Court Room; and
2. Tendering Contradicting Evidence."
32. As I said above, my general observation of Sergeant Peaku during evidence in chief and also cross examination makes me generally believe him. I do not think his mere presence in Court whilst one or two of the Plaintiffs’ witnesses were giving oral evidence greatly influenced him to give a favourable oral evidence for the Defendants. In fact, I had observed that he was not present in Court for the entire trial that day, as oppose to what is suggested by the Plaintiffs’ counsel. I recall seeing him coming into Court to speak to the Defendants’ counsel only once during the trial and that was towards the end of the Plaintiffs’ case and then took the witness box to give evidence.
33. Thus, in my view, he would not have had enough time to listen to the witnesses of the Plaintiffs in order to give a most favourable version to the Court. To my mind although it is a worthy point of objection as to the credibility and reliability of this witness, I am not satisfied that his mere presence in Court resulted in him giving favourable evidence for the Defendants. In fact, when the Plaintiffs’ counsel had objected to this witness taking the witness box stand to give evidence during the trial, I overruled the objection and allowed the witness to give evidence, hence I do not see any basis for the Plaintiffs’ counsel to raise the issue again.
34. In relation to the second ground of the Plaintiffs’ counsel’s submission that Sergeant Peaku tendered contradictory evidence, counsel submits at p 4 of her written submissions that I should not believe this witness because "He is not only the leader of the police contingent alleged to have been involved in the raid, but also he is a (sic) does not have good relationships with the people of Kaiwe. He is simply, not their men. It is not likely he would have conducted peaceful negotiations with them. He could easily take the side of his unit without considering the Plaintiffs’ claim."
35. With due respect, I am afraid I do not accept this submission because first, there is neither evidence in the Plaintiffs’ Affidavits nor orally that Sergeant Jimmy Peaku had a bad relationship with the Plaintiffs or the locals of that area before me. In fact none of the Plaintiffs stated in their Affidavits or in their oral evidence seeing Sergeant Peaku at Kaiwe market that day. So where is the evidence to support counsel’s submission that there exists a history of bad relationship between this witness and the Plaintiffs? In the absence of such evidence, I find that there is no evidence supporting this submission. Thus, there is nothing before me to suggest that I should not rely or believe the evidence of this witness.
36. The second reason for me to reject the Plaintiffs’ counsel’s submission is a follow on from the first reason and that is, whilst counsel suggested in cross examination of Sergeant Peaku that there exists a bad relationship between him and the Plaintiffs, this question runs counter to the rule in Browne -v- Dunn (1893) 6 R 67 HL because the Plaintiffs had not given any evidence either in their Affidavits or orally that there exists bad relationship between this witness and them. Therefore, it is unfair for the counsel for Plaintiffs to suggest so when there are no evidence led by the Plaintiffs in the first instance on this aspect to give counsel for the Defendants an opportunity to put the defence case to the Plaintiffs’ witnesses.
37. In my view, given the rule in Browne -v- Dunn’s case (supra) that in fairness, a party’s case must be put to the other party’s witnesses in cross examination, the Plaintiffs’ counsel should have led evidence from her witnesses on this aspect so that at least the Defendants’ counsel would have tested the Plaintiffs’ evidence on that aspect during cross examination of the Plaintiffs. As that has not been done by the Plaintiffs’ counsel, it is unfair to suggest that there exists a bad relationship between this witness and the Plaintiffs and use that as a basis to challenge the credibility of this witness.
38. Counsel for the Plaintiffs also submitted that the evidence of Sergeant Peaku should not be believed and relied upon by the Court because there are discrepancies in it. Some examples are:
* If Sergeant Peaku said that he and about 19 policemen were present at Kaiwe market at 5:30 that morning to hold a meeting with the people, there were no leaders at that time, thus it is hard to believe him if the policemen went there for that purpose, especially when it is a big group of policemen.
* If there were about 19 policemen on the ground at that time, why would Sergeant Peaku call for reinforcement?
* Even after the policemen had withdrawn from the scene, and he was the only one left behind to ensure that everything returned to normal, in such a case, it would be most unusual for a lone policeman like Sergeant Peaku to remain behind because such a confrontation with the police would attract people to gather and retaliate in a hostile manner against the police.
* If Sergeant Peaku received a radio call to return to Kaiwe market after he had returned to Mt Hagen Police Station, logically, it could have come from policemen who were still at Kaiwe market. From this radio call, it could be inferred that the policemen had not withdrawn from the scene that morning but were still there destroying the Plaintiffs’ property. What he has said contradicted what he said earlier that he had to call for reinforcement to help him and his 19 policemen to disperse the rowdy mob of youths earlier that morning.
* If a rowdy mob of youths had set up a road block at Kaiwe market at about 10 o’clock that morning after the policemen had withdrawn earlier that morning, and that he claimed that he went there alone to speak to the rowdy mob of youths, how comes he went with about 19 policemen earlier that morning to speak to the people who were not armed or hostile toward him and his policemen? It does not make sense.
39. The Defendants’ case is that there were two instances where policemen were said to have been at Kaiwe market on 1st October 1998. The first instance was at 5:30 in the morning. This was when Sergeant Peaku and 19 policemen went there to talk to the people. It was around that time too that they had a confrontation with a rowdy mob of youths. They fired tear gasses and shots to disperse the rowdy youths. They subsequently withdrew from the scene. The second instance was at 10 o’clock in the morning where Sergeant Peaku alone attended a road block set up by youths near the Kaiwe market. On the other hand, it is the Plaintiffs’ case that the policemen went to Kaiwe market at 10 o’clock and without warning, fired tear gasses and shots indiscriminately at the people including the Plaintiffs.
40. If I were to accept the Plaintiffs’ counsel’s submissions that I should infer that when Sergeant Peaku received a radio call to return to Kaiwe market after he had returned to Mt Hagen Police Station, it could only mean that it came from policemen who were still at Kaiwe market that morning, this submission would contradict the evidence of the Plaintiffs who said that they were surprised when policemen fired tear gasses and shot indiscriminately at them and others at 10 o’clock in the morning at the market. They said police had done so without any warning to them. The point to make here is that, if it is true that the police had not withdrawn from the scene earlier that morning, or in other words, still at the scene up until 10 o’clock, surely, the Plaintiffs would have seen them prior to the actual firing of tear gasses and shots.
41. Further still, why haven’t the Plaintiffs stated in their Affidavits or for those who had given oral evidence stated that the policemen were at Kaiwe market since 5:30 and up until 10 o’clock that morning? I do not recall if the Plaintiffs have answered this question at all. All they said was, the police came at about 10 o’clock am and fired tear gasses and shot at them. For example, this is how Plaintiff Andreas Kulda puts his story in evidence in chief, "I cannot count them, but there were a lot of policemen. There were 4 vehicles. I was inside the crowd and saw 4 vehicles. I am not sure about the cause. I was selling betelnut and police came and discharged firearms ad people fled. I feared for my life and fled."
42. In my view, I find this omission on the part of the Plaintiffs not only fatal to their case but it undermines their credibility. Are they telling the truth as to what had happened that day? Well I am not sure about that but, in as much as I’d like to believe them, at the same time I have grave doubts about their evidence in so far as looting and destruction of their property by the policemen is concern.
43. Finally, I do not accept the Plaintiffs’ counsel’s submission that if Sergeant Peaku said that he and about 19 policemen had gone to Kaiwe market at 5:30 that morning to hold a meeting with the people and that, there were no leaders at that time, thus it does not make sense if the policemen went there for that purpose, especially when it was a big group of policemen. I reject this submission because it is also common knowledge and logical that in an area or location where there is serious law and order problem and if police want to restore law and order, they need to go in a group to assert their authority and presence to broker peace and order in that community. And that is what I think had happened that morning when Sergeant Peaku and his policemen went to Kaiwe market.
44. In other words, they went there with good intention and that is to restore law and order in that area after receiving reports and complaints from the public that Kaiwe market area was not a safe place. Their good intention turned "bad" when they were attacked by a mob of rowdy youths questioning their presence there and eventual attack on them and their police vehicles. That is why Sergeant Peaku had to call for reinforcement. Whether reinforcement arrived, I do not know because there has been no evidence led on this point.
45. I agree with the suggestion put by counsel for the Plaintiffs that even after the policemen had withdrawn from the scene, and Sergeant Peaku had been the only one left behind to ensure that everything returned to normal, in such a case, it would be most unusual for a lone policeman like him to remain behind because such a confrontation with the police would have attracted people to gather and retaliate in a hostile manner against the police. But I do not think that would have been the complete story of what had happened. I will comment on this point later on.
46. Counsel for the Plaintiffs further submitted in her written submissions at p 4 that the evidence of Sergeant Peaku should not be believed and accepted by the Court because, "He denies outright a raid at 10:00 am as opposed to statements of the eighty one (81) Plaintiffs together with Francis Raima who gave evidence as well as oral evidence stating the raid occurred at 10:00 am."
47. But to my mind, there is no rule of law that says that a party that calls more witnesses and who gives consistent and almost identical stories must be believed and a party who calls only one witness must not be believed. There is also no rule of law that says that where two or more persons tell the same story, that story is the truth as opposed to a single witness. I made this observation in a criminal case of The State -v- Pariake Walara (2008) N3494 where I said, "And in a criminal case where there is only one witness in his own trial, that makes his chances of being believed non-existent. However, it has been said that ten people giving the same story who appear to be quite convincing could all be lying. On the converse, an accused may be the only witness in the defence case and may not be as smart or convincing as the prosecution witness, yet he could be telling the truth". See The State -v- Jacob Dugura Roy (2007) N3137.
48. Whilst the observation in Pariake Walara’s case (supra) was made in a criminal case, where the onus of proof is higher than in civil cases, in my view, the principle is the same and can be applied in civil cases, and of course having regard to the onus of proof. And in so doing, I am not entirely satisfied that the Plaintiffs have proven that the policemen destroyed and looted their property on that day.
49. Furthermore, I do not wish to dwell too much on the submissions of the Plaintiffs’ counsel again at the bottom of p 4, paragraph (f) of the written submissions in her attempt to demonstrate the unreliability of Sergeant Jimmy Peaku’s evidence that, ".......... we submit he not only tendered untrue evidence, but could have been easily been influenced to do so to protect his job and his unit. Further, as a senior prosecutor, he is well versed and comfortable with the processes of the Court and in giving evidence from the witness box, however, that does not justify the credibility of his evidence.
50. In relation to the first aspect of the Plaintiffs’ counsel’s submission that I should not believe and rely on the evidence of Sergeant Peaku because he was there simply to protect his job and unit, I must with respect reject this submission for the simply reason that the Plaintiffs have neither established this assertion by appropriate evidence nor have they through their counsel put this suggestion to Sergeant Peaku during cross examination, thus to enable the Court to ascertain for itself whether that is the case. Therefore, I find there is no evidence to support this submission of the Plaintiffs and I must reject it.
51. In relation to the second aspect of the Plaintiffs’ submission, whilst there maybe merits that Sergeant Peaku is a Senior Prosecutor, hence well versed and comfortable with the Court procedures and that is why he was confident and gave favourable evidence for the Defendants, how do I know that he is a Senor Prosecutor? All I know about him is that, it is his evidence in his introduction to the Court during the trial that he is a Sergeant and currently based at Mt Hagen Police Station. At the time of the alleged police raid at Kaiwe market, he was the Commander - Task Force- Response Unit. He never said that he is a Senior Prosecutor. So where is the evidentiary basis of the Plaintiffs’ counsel’s submission that because this witness is a Senior Prosecutor, he would have been well versed and comfortable with the Court procedures, hence a confident and impressive witness for the Defendants? In my view, there is absolutely no evidence that Sergeant Peaku is a Senior Prosecutor.
52. Secondly, I do not recall counsel for the Plaintiffs suggesting to him during cross examination that he is a Senior Prosecutor. I also do not recall him responding that he is a Senior Prosecutor. Even my notes in my notebook do not record any questions or suggestions by counsel for the Plaintiffs to him that he is a Senior Prosecutor. So where is the evidence to support this submission? I find there is no evidence to support this submission and I give no credence to it.
53. Thirdly, even if there was evidence that he is a Senior Prosecutor, hence he would have been well versed and comfortable with the Court procedures, hence was confident and impressive witness for the Defendants, this submission is again contrary to the rule in Browne -v- Dunn’s case (supra), where counsel for the Plaintiffs had not put these suggestions to him that being a Senior Prosecutor, he would have been well versed with the Court procedures and so would have used that experience to give favourable evidence without any blemish and fault being detected by the Court.
54. Finally, in accepting Sergeant Peaku’s oral evidence in so far as the presence of the policemen at Kaiwe market on 1st October 1998 and the reason for their presence are concern, I must make it very clear here for the record that I have not taken into account the evidence of Sergeant Peaku in his Affidavit which counsel for the Plaintiffs have correctly pointed out as not being tendered as evidence for the Defendants. It has played no part in this decision. On the other hand, I have based the decision of the Court solely on the oral evidence of Sergeant Peaku.
55. Apart from the uncertainty of those Plaintiffs who were cross examined on their evidence as to the perpetrators of the alleged looting and destruction of property, there are one or two more reasons for me to treat the evidence of the Plaintiff with caution. First, this case can be distinguished from the case of Philip Kunnga -v- The State (2005) N2864, by His Honour Cannings J. In that case, the Plaintiffs, 22 in total sued the Police and the State for damages arising from an illegal police raid at Kombulno village in the Minj District of this province. The Defendants denied liability and a trial was conducted to determine liability and also assessment of damages.
56. His Honour found that there was a raid conducted by the police involving destruction and stealing of property and livestock. He reached that conclusion after he was not convinced by the evidence of two witnesses of the Defendants who were policemen from Nondgul Police Station that there was no raid at Kombulno village because he found that there were evasive and contradicted each other in their evidence.
57. On the other hand, His Honour found that the Plaintiffs were impressive witnesses as their evidence was not only consistent with each other but also firm and particularized of the raid and the properties that were destroyed by the Defendants. Further, in that case, seven of the Plaintiffs gave oral evidence and were cross examined.
58. In the present case, only four of the Plaintiffs were cross examined and I had the benefit of observing their demeanour and heard their answers during cross examination. The remaining 76 Plaintiffs were not cross examined, hence I had not had the benefit of observing their demeanour in Court. That means that, their evidence had not been tested during cross examination and I must not place too much weight on their evidence. As for the four Plaintiffs who were cross examined on their Affidavits in addition to their oral evidence, their evidence seemed to be consistent with each other. I cite an example hereunder; when asked what time the raid took place, they all said between 10 o’clock and 11 o’clock in the morning and when they were asked how many policemen were involved, they all said many of them. When it was suggested to them that the police came to the market to talk to the people about the criminal activities, they all denied any such meeting by the police. They all said that the police had raided and destroyed the market without prior warning.
59. From the answers, it appears to me that these four Plaintiffs were coached or collaborated with each other to give this kind of evidence. It surprises me that all of them were able to say precisely that the alleged raid took place between 10 o’clock and 11 o’clock in the morning of that day. Yet none of them have said in their evidence if they had a watch on them or how they came to know the time. This is an example where the evidence of these four Plaintiffs is too good to be true. Hence, it is another reason for me to have grave doubts as to the truthfulness of their evidence.
60. Now, returning to the point I mentioned earlier that Sergeant Peaku may have down played the enormity and gravity of the situation on the ground that day, it is my respectful opinion that logic and common sense would dictate that if there is a commotion in a public place, it would attract people. Curiosity would draw people to the scene of the commotion to find out for themselves’ the reason for the commotion. Sometimes, the commotion might turn into a chaotic one. In a case where police fire shots and tear gasses to disperse people, there would be people running all over the place, looking for cover. At the same time, there would be people called "opportunist" who would take advantage of the situation by helping themselves to whatever valuable items they may find in the midst of the chaos.
61. Given such a scenario, I think that is exactly what had happened here. The police fired tear gasses and shot guns to dispense the rowdy mob of youths that morning. The policemen had done so because the rowdy mob of youths had attacked them with sticks and stones.
62. There were more than 30 people including youths there at that time when they arrived and talked to the people. A confrontation took place between a mob of rowdy youths and his policemen. The rowdy youths attacked them with stones and sticks. In order to protect themselves and their vehicles, they fired tear gasses and gun shots at the rowdy youths. The market sellers including the Plaintiffs were caught in the fray. The tear gasses blinded many people that morning including the Plaintiffs and like any other ordinary human beings, they fled the market in fear of their own lives and safety. As a result, they abandoned their properties. I do not rule out the possibility that opportunists and other bystanders took over and either destroyed or removed their properties. At the same time, policemen assaulted the youths.
63. Some of the Plaintiffs had not returned to the market for more than two hours. I think the reason is that, the situation was tense and Sergeant Peaku and his policemen had not withdrawn from the scene that morning. They had remained at the scene for more than an hour, which would have been around 7:30 to 8:00 in the morning to monitor the situation until everything cooled down. But I am unable to find if the looting and the destruction of the Plaintiffs’ property were done by policemen under the command of Sergeant Peaku. I am also unable to find that the looting and destructions of the Plaintiffs’ property occurred at 10 o’clock that morning. This is because it may have occurred earlier that morning and bystanders, opportunists including the fleeing crowd may have been involved.
64. The set up of the road block by youths at about 10 o’clock was an act out of frustration and anger over the looting and destruction of the market after the confrontation with the police earlier that morning. Sergeant Peaku attended to the road block after he received a call on the radio of his motor vehicle and told the youths to remove the road block which they did.
65. The findings I make are also consistent with the evidence of Francis B Raima in his Affidavit (Exhibit "P77") where he stated in paragraph 3 that, "The police threw the tear gases at the crowd in the market, ransacked the trade stores and caused general chaos as a result of which a lot of people lost their items as a general public joined in to stealing from the market vendors". (Underlining is mine).
66. Further, this witness has not stated in his evidence that he was present at the Kaive market when the police allegedly raided it. He only stated in paragraphs 1 and 2 of his Affidavit (Exhibit "P77") that, "I recall the 1st October 1998 as I was at my village at Gumas. It was on that day that the police carried out a massive raid at the local market". So how do I know if he was present at the time the police allegedly raided and destroyed the Plaintiffs’ property at the market? I accept his evidence in paragraphs 5, 6, 7, and 8 of his Affidavit (Exhibit "P77") that he had taken photographs of the market after the alleged raid by police. That may mean that he was not present at the time when the raid was allegedly conducted by the police that morning. Perhaps he would have shed more light on this aspect of his evidence if he had been cross examined by the counsel for the Defendants. As that has not been done, I am uncertain if this witness was present at the scene when the police allegedly raided and destroyed the Plaintiffs’ property at the market.
67. In my view, this is a very significant piece of evidence of the Plaintiffs’ case that is missing. The significance of this is that, if this witness was not present at the market when the police allegedly raided and destroyed the Plaintiffs’ property, he has not only, not seen the police looted and destroyed the Plaintiffs’ property but also had not taken the photographs as the policemen went about looting and destroying the Plaintiffs’ property. That is why I do not see any photographs of policemen in action during the alleged raid. In fact, he stated in paragraph 5 of his Affidavit (Exhibit "P77") that, "At that time, I had my Polaroid camera with me and I was able to take three (3) photos of the aftermath of the police raid". (Underlining is mine).
68. In the end, I find that this witness was not present at the market when the police allegedly looted and destroyed the Plaintiffs’ property. That means that, he has not seen who actually looted and destroyed the Plaintiffs’ property. That makes his evidence not relevant to the issue at hand that is, whether the policemen looted and destroyed the Plaintiffs’ property at Kaiwe market on that day. That also leaves open the suggestion that it could have been the fleeing people or anyone who could have looted and destroyed the Plaintiffs’ property.
69. This brings me back to the elements of the tort of negligence. Can it be said that the Plaintiffs have established that the Defendants owe a duty of care to the Plaintiffs, they have breached their duty of care and their conduct has caused injury or loss to the Plaintiffs? As to the first element, there is no doubt in my mind that the policemen as servants and agents of the Second Defendant and acting under the directions and control of the First Defendant owed a duty of care to the Plaintiffs in the discharge of their functions and duties on the date in question.
70. But I am not satisfied that they have breached the duty of care when they fired tear gasses and gunshots indiscriminately at the Plaintiffs. As I have found above, the policemen under the supervision of Sergeant Peaku had not gone to Kaiwe market to conduct a raid but to talk to the people about law and order. They were confronted by a rowdy mob of youths and were attacked by the mob. They retaliated by firing tear gasses and gunshots at the youths to disperse them and also assaulted them. But as I have found above, I am not satisfied if they had destroyed and looted the Plaintiffs’ property because it is not clear if they had. I am also not satisfied that the policemen’s negligent conduct caused loss to the Plaintiffs.
71. Even if it were to be argued that the policemen were the initial instigators of the looting and destruction of the Plaintiffs’ properties, when they fired tear gasses and shotguns at the rowdy mob of youths, the question is, should the Defendants be held liable for the loss suffered by the Plaintiffs. This brings in the question of remoteness of damages. In my respectful opinion, I do not think so. First, it cannot be said that they were the initial instigators because of the confrontation with the rowdy mob of youths that morning. It was the rowdy mob of youths who started the attack on the policemen. The policemen reacted in order to protect themselves and their police vehicles.
72. Secondly, to say that because the policemen fired tear gasses and gunshots which led to the looting and destruction of the Plaintiffs’ property by opportunists or fleeing crowd hence, should be liable for instigating the rioting would in my respectful opinion stretch the duty of care owed by the policemen to the Plaintiffs beyond its limits. In other words, the Plaintiffs’ losses are too remotely connected to the policemen’s conduct as tortfeasors.
SUMMARY
73. In summary, what all the above discussions mean is that, the evidence of the Plaintiffs is unclear as to whether the policemen conducted the raid at Kaiwe market on 1st October 1998. It could have been anyone. It could have been the policemen or it could have been bystanders and opportunists. In my view, the Plaintiff have not discharged the onus of proof bestowed upon them, thus I am not satisfied on the balance of probabilities that policemen under the command of Sergeant Peaku had destroyed and looted their property on that day.
ORDERS
I dismiss the proceeding with costs to be paid by the Plaintiffs to be taxed if not agreed. The time for entry of these orders shall be abridged to the date of settlement by the Registrar which shall take place forthwith.
Judgment accordingly.
_____________________________________________
Kopunye Lawyers: Lawyers for the Plaintiff
Acting Solicitor General: Lawyers for the Defendant
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