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Jobou v Kumasi [2012] PGNC 377; N4607 (9 March 2012)

N4607

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1444 OF 2002

ANUTA JOBOU & KORO WAGI ON BEHALF OF THEMSELVES AND THE VILLAGERS OF BOM VILLAGE, RAI COAST
Plaintiffs

V

ALFRED KUMASI
First Defendant

ROBERT KALASIM
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Madang: Cannings J
2011: 23, 24, 25 August, 11 November,
2012: 9 March

TORTS – negligence – breach of human rights – alleged unlawful destruction of properties by police – police raid of village – whether the State vicariously liable for conduct of police officers – assessment of damages.

An armed police squad entered a village in pursuit of a prison escapee who had allegedly shot dead a policeman. The plaintiffs, 155 villagers, alleged that it was a police raid and that the police terrorised them and burned down their houses, killed livestock and destroyed property. They commenced proceedings against the officer in charge of the police squad, the provincial police commander and the State, claiming damages for negligence and breach of constitutional rights, in the sum of K497,610.00 (comprising claims of K187,610.00 for property losses and K310,000.00 (K2,000.00 for each plaintiff) for breaches of constitutional rights). The defendants denied liability. At this trial on liability and damages three central issues arose: (1) whether the conduct of the police amounted to a raid or a legitimate search of the village; (2) if it was a raid, whether the plaintiffs have established liability in negligence or breach of constitutional rights; and (3) if liability is established, what amount of damages are the plaintiffs entitled to.

Held:

(1) The police operation was a raid involving indiscriminate destruction of property and not the legitimate exercise of powers of search and seizure under the Search Act.

(2) A cause of action in negligence was established against the third defendant, the State, which was vicariously liable for the tort of negligence committed by its employees, the police officers who conducted the raid. However, there was insufficient evidence to link the first or second defendants with the carrying out of the raid and liability was not established against them. As for the alleged breaches of constitutional rights, this part of the plaintiffs’ case was inadequately pleaded and liability was not established.

(3) As for assessment of damages 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 damages for property losses.

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

(5) Total damages awarded was K93,781.83; total interest awarded was K67,522.91; the total judgment sum being K161,304.74.

Cases cited

The following cases are cited in the judgment:

Albert Baine v The State (1995) N1335
Eriare Lanyat v The State [1997] PNGLR 253
Eton Pakui v The State (2006) N2977
Jacob Simbuaken v Neville Egari (2009) N3824
Joe Tipaiza v James Yali (2008) N3472
Jonathan Mangope Paraia v The State (1995) N1343
Justin Bau v Paul Karl (2010) N4123
Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779
Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Otto Benal Magiten v Rural Development Bank Ltd WS No 938 of 1999, 20.10.06
Peter Wanis v Fred Sikiot and The State (1995) N1350
The State v David Wari Kofowei and Others [1987] PNGLR 5
Vincent Kerry v The State (2007) N3127
Wama Kints v The State (2001) N2113
Yange Lagan and Others v The State (1995) N1369
Yooken Paklin v The State (2001) N2212

TRIAL

This was a trial on liability and assessment of damages.

Counsel

P Kunai & G Anis, for the plaintiffs
W Mapiso, for the defendants

9 March, 2012

1. CANNINGS J: On Friday 1 November 1996 an armed police squad entered Bom village, in the Rai Coast district of Madang Province, in pursuit of a prison escapee who had allegedly the day before, at a spot near the village, shot dead a policeman. The escapee was from Bom and the police thought that he might be holed up in the village. Anuta Jobou and Koro Wagi are village elders. They claim that when the police entered the village they went on a rampage, terrorised the villagers, and burned down houses, killed livestock and destroyed property. They have led 153 other villagers in commencing legal proceedings against the officer in charge of the police squad (first defendant), the provincial police commander (second defendant) and the State (third defendant), claiming damages for negligence and breach of constitutional rights. They claim a total amount of K497,610.00, comprising claims of K187,610.00 for property losses and K310,000.00 (K2,000.00 for each plaintiff) for breaches of constitutional rights. The defendants denied liability so a trial has been conducted on liability and assessment of damages. The defendants say that there was no raid, but a legitimate police operation involving a search of the village in hot pursuit of a suspect. If the court finds that there was a raid, they say that they are still not liable as the plaintiffs’ case has been poorly pleaded. If the court finds that liability has been established, the plaintiffs should nonetheless be awarded no or a minimal amount of damages as they have not proven their losses. There are thus three central issues:

(1) Was it a raid or a legitimate search of the village?

(2) If it was a raid, have the plaintiffs established liability in negligence or breach of constitutional rights?

(3) If liability is established, what amount of damages are the plaintiffs entitled to?

1 WAS IT A RAID OR A LEGITIMATE SEARCH OF THE VILLAGE?

2. This is a question of fact. Each of the 155 plaintiffs swore an affidavit deposing to what happened. Thirty-four of them gave oral evidence and were cross-examined. Their evidence was consistent. The police, led by the Ileg Rural Police Commander, Alfred Kumasi, entered the village at 7.30 am in pursuit of the escapee. The villagers co-operated and assisted in the search but the police got angry with them, swore at and harassed them, assaulted some and then the villagers fled into the bush. Some saw the police burning down their houses, kill livestock such as pigs and chickens and destroy their property. Others discovered their losses when they returned to the village after spending several nights in the bush.

3. The second defendant, Robert Kalasim, was the only witness for the defendants. He gave oral evidence. He said that he was at the time the provincial police commander. A couple of days before the alleged raid he sent a squad of about ten police from Madang to the Bom area after receiving a report that the escapee had headed there and was believed to have committed an armed robbery in which a man had been wounded. The Madang police were to reinforce the efforts of Sgt Kumasi, the Ileg Rural Police Commander, to capture the escapee. On or about 31 October he received a report that a member of the squad that had been dispatched from Madang was shot dead, allegedly by the escapee. A few days later he recalled the squad as they reported that they were unable to locate the escapee; also it was important for the body of the deceased policeman to be brought back to town, to enable its repatriation to his home province of Manus. Soon afterwards he learned of allegations against the police and their alleged victimisation of villagers at Bom. There was, however, no formal complaint made, so no investigation of the allegations took place. He did not sanction any sort of raid of the village and he did not go to Bom at that time. His evidence was therefore that he was unable to confirm or deny the allegation that it was a raid of the village rather than an orderly and legitimate search.

4. I accept Mr Kalasim’s evidence. He did not authorise a raid or any illegitimate police operation. However, he was in no position to deny the allegations of the plaintiffs, which I find have been proven. It was not an orderly search of the village. It was a raid. The police were angry, frustrated and distressed over the death of their colleague. They thought that the villagers were hiding the person responsible so they vented their frustrations on them by burning down houses, killing livestock and destroying property.

2 HAVE THE PLAINTIFFS ESTABLISHED LIABILITY?

5. It is one thing to prove facts; it is another thing to establish liability. The plaintiffs have pleaded two causes of action: the tort of negligence and breach of constitutional rights. The defendants argue that neither has been established.

(a) Negligence

6. The defendants argue that they should not be found liable for the common law tort of negligence for three reasons. First they say that there can be no liability at common law, only under the Search Act, breach of which has not been pleaded. Secondly, the statement of claim is defective as it does not plead the elements of the tort of negligence or the alleged vicarious liability of the State. Thirdly, if the court finds that the statement of claim is not entirely defective, liability should still not be entered against any of the defendants because of deficiencies in the evidence.

(i) The Search Act

7. Mr Mapiso, for the defendants, submitted that because Section 17 (civil remedy for wrongful exercise of powers conferred by this Act) of the Search Act expressly allows a person aggrieved by a breach of the Search Act to seek a civil remedy in damages, the aggrieved person cannot bring a common law claim for such wrongful conduct. Section 17 states:

(1) A person who—

(a) exercises a power to make a search in breach of this Act; or

(b) exercises a power conferred by this Act, other than a power of search, in breach of this Act; or

(c) performs a duty imposed by this Act in breach of this Act; or

(d) fails or refuses to perform a duty imposed by this Act,

may be liable in damages to the person aggrieved by that breach.

(2) An action under Subsection (1) may be brought—

(a) in the National Court; or

(b) in a District Court,

and in the case of a District Court the court has jurisdiction within the limits prescribed by Section 21 of the District Courts Act.

(3) In an action under Subsection (1) a court may award exemplary damages.

(4) The provisions of this section are in addition to and not in derogation of the provisions of the Constitution or any other law dealing with the enforcement of any constitutional right, power, duty, restriction or prohibition.

8. I cannot see how Section 17 can be reasonably interpreted so as to exclude a common law claim for negligence in the case of conduct that is regarded as a breach of the Search Act. The section does not say that expressly or impliedly. The defendants’ argument based on Section 17 of the Search Act is rejected.

(ii) Pleadings

9. Mr Mapiso relied on my decision in Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779 to argue that to establish liability in negligence a plaintiff needs to plead and prove the elements of the tort of negligence:

1 the defendant, or a person or persons for whom it is vicariously responsible, ie the tortfeasor, owed a duty of care to the plaintiff and the other claimants;

2 the tortfeasor breached that duty, ie by act or omission the tortfeasor’s conduct was negligent;

3 the tortfeasor’s negligent conduct caused injury to the claimants;

4 the claimants’ injuries were not too remotely connected to the tortfeasor’s conduct; and

5 the claimants did not contribute to their own injuries, eg by being contributorily negligent or voluntarily assuming the risk of injury.

10. He submitted that the statement of claim does not plead those elements, it is defective and therefore the proceedings should be dismissed as disclosing no reasonable cause of action. This is a reasonable argument to raise and it must be said that the statement of claim should have been drafted with greater precision. However, for three reasons I dismiss the argument. First, it is not raised in the defendants’ defence, so the defendants are guilty of the same sort of defective pleading that they say the plaintiffs’ case suffers from. Secondly it is the sort of argument that should have been raised in interlocutory proceedings, not at the trial. If a matter such as this goes to trial the defendants are presumed to know the nature of the case against them. Thirdly, as I have commented in cases such as Otto Benal Magiten v Rural Development Bank Ltd WS No 938 of 1999, 20.10.06 and Vincent Kerry v The State (2007) N3127, the court can be justifiably critical of poor pleadings and judicial spleen can be vented on lawyers or laypersons who have wasted the court’s time by making it think hard about what the cause of action actually is. However, I do not think the court advances the interests of justice by dismissing proceedings at the trial stage for this reason alone.

11. Mr Mapiso has raised a similar sort of argument regarding the alleged vicarious liability of the third defendant, the State. He submits that the elements of Section 1(1)(a) (general liability of the State in tort) of the Wrongs (Miscellaneous Provisions) Act have not been pleaded. Therefore the State cannot be found liable. He referred to the decision of Davani J in the National Court in Jacob Simbuaken v Neville Egari (2009) N3824 in support of that proposition. Again I see the merit in the argument but I am not bound to follow the rather strict approach taken by her Honour in Simbuaken. I will stick to the approach I took in Kerry. I am satisfied that the gist of the claim for vicarious liability was pleaded. As I indicated earlier, the National Court should be reluctant to dismiss otherwise legitimate claims against the State simply because a statement of claim has been poorly drafted.

(iii) Evidence

12. It is argued that the first and second defendants cannot be found liable as the evidence does not support a finding that they individually committed the tort of negligence. I agree that this is certainly the case with the second defendant, Mr Kalasim. He was an honest and impressive witnesses and I accept his evidence that he played no role in what happened at Bom on 1 November 1996. As for the first defendant, Mr Kumasi, there is evidence that suggests that he participated in the raid and that he was actually in charge of the operation. However, I consider that the evidence is not convincing enough to conclude with safety that he participated actively in the raid. Thus liability in negligence has not been established against either the first or second defendants.

13. As for the State, I find that the evidence is sufficiently strong to make a finding of vicarious liability. First, as to the elements of the tort of negligence, I find that:

• The police officers who entered, searched and raided the village owed the villagers a duty of care.
  
• The police officers who damaged the plaintiffs’ property were negligent. They breached the standard of care required in the circumstances.
  
• The negligent conduct of the police officers caused the damage to the plaintiffs’ property. Causation is established.
  
• The type of damage sustained by the plaintiffs was reasonably foreseeable.
  
• The plaintiffs were not guilty of contributing to their own damages.
  

14. The plaintiffs have therefore established the tort of negligence against the police officers involved in the raid. The next question is whether the State is vicariously liable.

15. Vicarious liability is a common law principle by which one legal person is held liable for the acts or omissions of another person or group of persons over whom the first person has control or responsibility. The principle of vicarious liability of the State has been codified by Section 1 (general liability of the State in tort) of the Wrongs (Miscellaneous Provisions) Act. The plaintiff must prove that the tort complained of was committed by police officers within the scope of their police employment or functions (The State v David Wari Kofowei and Others [1987] PNGLR 5).

16. As I said in Kerry, the powers, functions, duties and responsibilities of the Police Force and its members are prescribed by Constitutional Law, statute and the underlying law. Section 197 of the Constitution states that the primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament, to preserve peace and good order in the country and to maintain and, as necessary, enforce the law in an impartial and objective manner. Section 140 of the Police Act 1998 states (and Section 139 of its predecessor, the Police Force Act Chapter 65, stated) that a member of the Force has the same powers, duties, rights and liabilities as a constable under the underlying law, except in so far as they are modified by or under an Act of Parliament. If it is established that police officers were acting within the scope of their functions, the State is liable for their tortious conduct unless the State discharges the onus of showing that what they did was totally removed from the domain of their authorised actions (Eriare Lanyat v The State [1997] PNGLR 253; Wama Kints v The State (2001) N2113).

17. I now apply the above principles to the present case and find as follows:

• A police squad comprising members of the Royal Papua New Guinea Constabulary based at Ileg and Madang committed the tort of negligence on 1 November 1996 at Bom.
  
• Their acts gave rise to a cause of action in tort against them by 155 villagers, led by Anuta Jobou and Koro Wagi.
  
• The tort was committed in the course of performing functions imposed on them as police officers, ie it was within the scope of their police functions. They were police officers engaged in a legitimate police operation, attempting to arrest a prison escapee who was suspected of committing two serious crimes after his escape from Beon Jail: armed robbery and murder.
  
• The State has not discharged the onus of showing that what the police officers did was totally removed from the domain of their authorised actions. It could be argued that it is obvious that police officers should not go on a rampage and conduct a raid under the guise of carrying out a search of a village in hot pursuit of a suspect. However, as I said in Kerry, the principle of cases such as Lanyat and Kints must be strictly applied, to avoid the spectre of the State escaping liability for the actions of police officers simply on the ground the police have acted well beyond their legitimate authority. The State is responsible for the training of police officers and development of a responsible police culture, one that respects the human rights of individuals, especially of persons in custody, charged with offences or suspected of being an offender. The State must be held accountable for the conduct of police officers committed generally within the scope of their authorised functions even if, in the exercise of those functions, an individual police officer does something that is clearly unauthorised and unlawful.
  

18. To sum up this part of the plaintiffs’ case, the third defendant, the State, is found vicariously liable in negligence; but the case against the first and second defendants fails: neither is liable in negligence.

(b) Breach of constitutional rights

19. The plaintiffs claim K2,000.00 each for breach of their constitutional rights. They are saying that the police violated their human rights. Mr Mapiso submitted that defective pleadings again mean that the court should refuse to find liability. On this occasion I find myself in agreement with Mr Mapiso’s submissions. This part of the plaintiff’s case is poorly articulated. The statement of claim does not specify which human rights were infringed. Even when submissions were made at the trial it was not clear which rights the plaintiffs were trying to enforce. Was it:

• 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)?
• protection against unjust deprivation of property (Constitution, Section 53(1))?
  

20. Neither the plaintiffs’ statement of claim nor their written or oral submissions adequately referred to Section 57 of the Constitution (enforcement of guaranteed rights and freedoms) as a way of invoking the jurisdiction of the National Court. Such deficiencies in the presentation of the plaintiffs’ case have made it difficult for me to uphold these claims. I took a rather liberal approach to the deficiencies in the statement of claim in respect of the cause of action in negligence, and that resulted in that part of the plaintiffs’ case succeeding, at least against the State. But I find that the deficiencies in the statement of claim in respect of the cause of action in breach of constitutional rights are more serious, and they have not been remedied in submissions. This part of the plaintiffs’ case is vague and ill-conceived. I conclude that liability for breach of constitutional rights has not been established against any of the defendants.

(c) Conclusion as to liability

21. The plaintiffs have, in relation to:

• the first defendant, Alfred Kumasi, failed to establish any liability;
  
• the second defendant, Robert Kalasim, failed to establish any liability;
  
• the third defendant, the State, established liability for negligence, but has failed to establish liability for breach of constitutional rights.
  

3 WHAT AMOUNTS OF DAMAGES ARE THE PLAINTIFFS ENTITLED TO?

22. In the statement of claim the plaintiffs sought three categories of damages:

• K310,000.00 (being K2,000.00 for each of the 155 plaintiffs) for breach of constitutional rights; and
  
• general damages for pain, suffering, mental anxiety and hardship; and
  
• property damage of K187,610.00 (being total of the claims of various amounts by each of the 155 plaintiffs).
  

23. I have already decided that there is no liability for breach of constitutional rights, so that part of the claim is entirely rejected. As for general damages, the plaintiffs have not pursued this part of their claim. Mr Kunai has conceded that there is insufficient evidence to warrant an award of damages for pain and suffering. That leaves only property damage to be assessed.

24. Each of the 155 plaintiffs swore an affidavit describing the property that they lost or that was damaged or destroyed as a result of the raid and estimating its total value. Kau Wagen (plaintiff No 61) makes the lowest claim, K150.00, for:

15 x chicken x K10.00 = K150.00

25. John Basse (plaintiff No 54) makes the biggest claim, K10,119.00, for:

1 x permanent house K7,500.00

Cooking utensils K250.00

6 lamps K33.00

Clothing and bedding K547.00

1 x empty drum K50.00

Gardening and working equipment K210.00

Roofing iron K29.00

100 chickens K1,000.00

10 x stock-feed K500.00

26. Bom village was raided, negligently and unlawfully, by the police. The homes and other properties of the plaintiffs were destroyed. Of that there is no doubt. But, can it be said that each of the 115 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? 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).
  

27. Mr Mapiso has highlighted those principles and strenuously challenged the veracity of every claim. He valiantly tested the credibility of each of the 34 plaintiffs who gave oral evidence. In a well prepared submission he has subjected the plaintiffs’ evidence to critical analysis, exposing the defects in each claim and the lack of supporting evidence. Having carefully considered his submission, I find myself in agreement with the thrust of his submission that the plaintiffs’ claims are exaggerated. The greatest deficiency in the plaintiffs’ case is that there is no independent corroboration of the details of the incident and the extent of each plaintiff’s losses. 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. If there was proof that a complaint had been laid with the local member of Parliament or the provincial government or the provincial police commander 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 and recorded the nature and extent of their property losses.

28. It does not follow from this, however, that I should regard the claims as bogus or award the plaintiffs nothing. The plaintiffs have proven that the police acted unlawfully, and I accept that the plaintiffs were terrorised that they suffered property losses. So, what should they be awarded? Faced with this scenario in previous cases I have sometimes discounted each claim to take account of deficiencies in evidence. For example, in Joe Tipaiza v James Yali (2008) N3472 the 220 plaintiffs claimed property losses of K3.9 million following an unlawful squatter eviction exercise by police and the provincial government in Madang town. I discounted each of the claims by 50% in view of deficiencies in the evidence. In Eton Pakui v The State (2006) N2977, a case involving an unlawful police raid of Tulipato village in Enga Province, I discounted the 16 claims by 90%. In Justin Bau v Paul Karl (2010) N4123 there were 61 plaintiffs who were the victims of a police raid at Muledami settlement in the hilltops around Kimbe, West New Britain. In an assessment of damages following entry of default judgment against the State I concluded that the claims were exaggerated but because of the lack of precision in the amounts being claimed by each plaintiff I awarded them each a flat figure of K10,000.00, rather than discounting each claim as in Tipaiza and Pakui. In this case, the approach taken in Tipaiza and Pakui is the preferable one. I consider that the interests of justice lie in accepting that each of the plaintiffs should receive an award of damages. I will discount each claim by 50 per cent to take account of the deficiencies in the evidence. For example:

• the plaintiff with the smallest claim, Kau Wagen, will be awarded K150.00 x 0.5 = K75.00;
  
• the plaintiff with the biggest claim, John Basse, will be awarded K10,119.00 x 0.5 = K5,059.50.
  

29. The awards of damages for all plaintiffs are shown in the schedule at the end of this judgment.

INTEREST

30. 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. I will award interest from the date of service of the writ, 6 March 2003, to the date of this judgment, 9 March 2012, a period of nine years. 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.
  

31. For example, for Kau Wagen:

• K75.00 x 0.08 x 9 = K54.00.
  

For John Basse:

• K5,059.50 x 0.08 x 9 = K3,642.80.
  

32. The awards of interest to all plaintiffs are shown in the schedule at the end of this judgment.

COSTS

33. 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. I have seriously considered discounting the award of costs to the plaintiffs in view of the deficiencies in the statement of claim but decided not to do on this occasion. The State will pay the plaintiffs’ costs.

JUDGMENT

34. The Court will order that:

1. damages are payable by the third defendant to the plaintiffs, as prescribed by “damages awarded” in the Schedule;
   
2. interest is payable by the third defendant to the plaintiffs, as prescribed by “interest awarded” in the Schedule;
   
3. a total judgment sum is awarded to each plaintiff, as prescribed by “judgment sum” in the Schedule;
   
4. costs of the proceedings shall be paid by the third 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 defendants