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Koloma v Independent State of Papua New Guinea [2013] PGNC 233; N5423 (15 November 2013)

N5423

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO. 03 of 1998

BETWEEN:

JACOB KOLOMA
Plaintiff

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Mount Hagen: Poole, J
2013: 20 May & 15 November

DAMAGES – When village plaintiffs suffer damage arising from arson of buildings and looting of property by unidentified members of Police Force it is appropriate to award exemplary damages against the State and not individuals, to mark public disapproval of such criminal behaviour, (Joe Kapi v The Sate (N4745) followed.)

Cases Cited

More and Andale v Henry Tokam & The State (1997) N1645
Joe Kape v The State (2012) N4745)
Latham v Henry [1997] PNGLR 435

Counsel:

Mr. Kopunye, for the Plaintiff
Mrs. Agusave, for the Defendant

15th November, 2013

1. POOLE J: Background: In May this year, when conducting a review of incomplete matters, this file came to light. The background of this matter, is as follows:

2. On 27th July 1997 police from Mt. Hagen arrived at Kopil village, Nebilyer apparently on an operation which was to discover who had erected a road block near the old Nebilyer Station.

3. While police personnel were at the village, houses were burnt and trade stores looted. Eleven plaintiffs claim this was done by the police and have brought an action claiming both general damages and exemplary damages. They also claim statutory interest and costs.

4. A Writ and Statement of Claim was filed on 5 January 1998, and served on the State which duly entered a Defence to that Writ and Statement of Claim.

5. The Defence is a brief document which simply denies the loss and damage and says that, if it occurred, it was caused by political rivals and not police.

6. The plaintiffs all swore and filed affidavits of evidence which were served on the Solicitor General's office.

7. On the 5th December 2000, the Court ordered the matter to be tried by affidavit evidence and also ordered the parties to file and serve affidavits of evidence within 14 days and to file and exchange submissions.

8. The plaintiffs filed submissions. Nothing by way of affidavits or submissions was filed by the State Solicitor's office.

9. When this matter again came to attention, the Court listed it and Ordered the parties (both of whom were represented in court) to file and serve any additional material within 14 days. Again, nothing has been done by the State Solicitor's office.

10. The matter now is to be determined both on liability and on quantum.

11. On liability, I note the State Defence is that if the damage and loss happened, it was not caused by the police.

12. There is, as I have said, no evidence from the Defendant to support this pleading. Pleadings are statements of fact but not evidence.

13. There is evidence from each of the eleven plaintiffs, in the form of their sworn affidavits, that they saw two ten seater police land cruisers (which most of them stated they recognised as being from Mt. Hagen) at the village at the relevant time on 27th June 1997. They also, all eleven plaintiffs, stated they saw men in police uniform.

14. I reject the Defence's claim that any damage caused on 27th June 1997 was caused by persons other than police and I accept the Plaintiffs' evidence it was caused by members of the Royal Papua New Guinea Constabulary from Mt. Hagen, and I so find as a matter of fact.

15. Many of the witnesses, whose evidence I shall deal with later, give eye witness accounts of seeing police setting fire to houses. Others depose to seeing houses on fire in the village while police were there when most of the villagers had run away through fear of gunfire and tear-gas.

16. In light of this evidence, which I shall refer to in more detail, I am satisfied on the balance of probability that the burning and looting took place and it was done by police who were there at the time.

17. I find on the evidence that liability for the loss and damage which the plaintiffs plead in their Statement of Claim rests with the Defendant.

18. Again, the Court expressesed the strongest disappointment with the apparent absolute neglect of the State Solicitor's Office to properly defend this matter and grave concern at the apparent abandonment of its duty to safeguard the State's interest in matters where it is alleged the police have caused harm to citizens. This attitude of being a passive third-party pay master, rather than seeking to prevent great loss of State funds, falls little short of encouraging bad behaviour by individuals who are never held to account for their criminal actions.

19. The evidence by the plaintiffs in support of the facts pleaded takes the form of an affidavit from each of the 9 individuals in support of their claim for damages. I shall examine each separately.

20. At the outset, however, I note that the plaintiffs plead for relief as follows:

(a) "Compensatory damages at K12,965.20, being the value or approximate value of losses and damages suffered by the Plaintiffs;

(b) Exemplary or Punitive Damages as pleaded above to be assessed and awarded by the Court;

(c) A 8% interest per annum pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act to be calculated in the following manners:

(i) on the Judgement Debt from date of service of the Writ on the Defendant to date of Order, and

(ii) from 30 days after the service of the order on the Defendant to a date on the Judgement Debt where the Judgement Debt remains unpaid; and

(d) Cost of this proceedings either to be taxed or agreed to between the parties."

21. The plaintiffs seek exemplary damages to mark "the public's indignation and the need for deterrence for the outraging (sic) conduct of members of the Papua New Guinea Royal Constabulary (sic)."

22. The State has acknowledged that the Plaintiff, Jacob Koloma, acts in a representative capacity for himself and 10 Others.

23. The evidence of the nominated plaintiff, Jacob Koloma is that he recalls that on 27th June 1997, members of the Royal Papua New Guinea Constabulary came to his village, Kipil. At about 11 am, he went to the village sing-sing place where people were discussing a road block set up, he says, by another tribe.

24. Between noon and 1 pm he heard gunshots and ran into the bush and hid. From his hiding place he saw two police ten seater Toyota Land Cruiser vehicles and (I take it as a reference to police uniforms) said, "the whole village was in blue." He saw tear gas being fired and smoke and flames coming from houses owned by Kulip Ande, Dominic Pale, John Pala Kelema and Maine Mirr. He also says police broke into his trade store and stole or destroyed a lot of goods.

25. I find the evidence neither improbable nor in any way contradicted. It is relevant to the facts pleaded in the Statement of Claim and must be considered in the context of what was clearly a police operation which was undisciplined and out of control, and in view of corroboration by the evidence of other witnesses, I accept that, on the balance of probability, police did break into Jacob Koloma's trade store on 27 June 1997 and loot it.

26. He lists the items of goods he lost when his trade store was looted and I find the number, description and price of the goods to be neither improbable nor unreasonable.

27. He claims damages in the sum of K580.25 by way of general damages for loss of property at the hands of unidentified police and I award that sum.

28. He also claims exemplary damages. While there are authorities (see, eg More & Andale v Henry Jokim & The State (N1645) for the proposition that exemplary damages should only be awarded against individual tortfeasors and not the State, I prefer, in this instance, to follow the authority of Joe Kape v The State (N4745) which approves the award of exemplary damages against the State when it is not possible to sufficiently identify the individual police whose actions while apparently on duty gave rise to the claim.

29. It is utterly unacceptable to have members of the police force, who are sworn to uphold the law and protect citizens, terrorising simple village people and breaking into buildings and stealing their goods. The evidence is that those men, sworn to uphold the law, broke into a shop and committed a crime in it. The Criminal law (see section 39 of the Criminal Code) regards this as a crime sufficiently serious to warrant a punishment of up to 14 years imprisonment.

30. To mark the public disapproval of serious criminal actions, by those whose duty to protect the public from crime (see Latham v Henry [1997] PNGLR (435)). I find that this plaintiff is entitled to exemplary damages. In view of the serious nature of the crime which was a violation of a citizen's property rights, I set the exemplary damages payable to this plaintiff by the State at K2000.00.

31. Dominic Pale is another man from Kopil on whose behalf Jacob Koloma brings this representative action. His evidence is that he saw policemen walking on the road leading to his house and saw "they fired some gas" and he heard gun shots. He ran and hid in the bush. From his hiding place he saw policemen around his house, and the one next to it, were both on fire. He says he and his family lost all their possessions when the house was burnt. He values his house at K500 and the contents (which he lists and values item by item) were worth K243.00. I find the claim, both as to items and values, to be reasonable and, as general damages for loss of property award the sum of K743.00 to be paid to Dominic Pale.

32. There is no reason offered, nor can one be imagined, for police to go about wilfully and unlawfully burning down houses. That conduct is arson, a crime regarded so seriously (see section 436 of the Criminal Code) that persons who commit it face the possibility of life imprisonment.

33. It can never be excusable for police to wilfully commit such a serious crime and, in so doing, take away the house and all the possessions of a simple family of villagers.

34. Such conduct warrants the award of exemplary damages as a mark of public condemnation. In view of the serious nature of arson, I award the sum of K2000.00 exemplary damages to be paid to Dominic Pale.

35. Anna Maine Mirr is a widow who also lived in Kopil village on the 27th June 1997 and was picking coffee near the village that day.

36. She heard gun shots and, from where she was standing, saw policemen set fire to her family house and Pale's house. She and her family lost the house (which she values at K400) and contents (individually listed and valued) to a value of K1167.50. I find the claim reasonable both as to items listed and values put on them and award general damages for loss of property in the sum of K1597.50 to be paid to Anna Maine Mirr.

37. Again, this woman and her family were victims of arson by police and, for the reasons already stated in relation to the burning of Dominic Pale's house, I award exemplary damages for arson in the sum of K2000.00 to be paid to Anna Maine Mirr.

38. The Plaintiff Sanpaia Kelema, in his affidavit of evidence claims only that "during that raid the police went to my house and stole my properties." He then lists items he says were stolen and places a value on each item. His brother, the plaintiff Pala Kelema, owned the house in which Sanpaia Kelema lived and he deposes, in his affidavit, of seeing police burn down the house in which Sanpaia Kelema had his possessions. Although Sanpaia Kelema does not give evidence of the cause of his loss, that evidence is given by Pala Koloma and I find that, on the balance of probability, Sanpaia Kelema lost his property as a result of actions by the police. I also find that I accept as reasonable the evidence of Sanpaia Kelema of the items lost and their value.

39. I award him the sum of K450.00 as general damages for loss of property.

40. The plaintiff Tomambo Ande also claims damages for loss of property in June 1997 as a result of her house being burnt by the police. Her affidavit states she saw police in the village at the time her house was on fire and I accept that, on the balance of probability, the loss was the result of police setting fire to the house.

41. She says she is an old woman and she told her son, the plaintiff Kulip Ande, to list the possessions she lost. The claim for damages for loss of property is part of her son's claim, but her loss, separate from his, was also caused by arson committed by the police, for which I award her the sum of K2000.00 as exemplary damages.

42. Kulip Ande gives, in his affidavit evidence, an eye witness account of police from Mt Hagen coming into his village while he was in front of his house chopping firewood. They came in firing teargas and discharging firearms and he ran away in fear and hid. From his hiding place he saw his house and Dominic Pale's on fire and, on the balance of probability I find that the loss of property he deposes to was caused by the police. I also find I accept as reasonable the items he claims lost which, he says, "belonged to me and my family members" and, also, as reasonable the value he places on the listed items to a total of K2,332.10.

43. I award general damages for property loss in the sum of K2,332.10 to Kulip Ande and his family members and, in addition, exemplary damages in the sum of K2000.00 for arson of his house and contents.

44. Pala Kelema deposes to being in the village playing cards when the police came to his village in June 1997. He ran away because he was frightened of the police. He deposes to the police burning his house and, although he does not give direct evidence of seeing the fire lit, in the context of the facts deposed to by him and other witnesses, I find, on the balance of probability, that the fire which destroyed his property was set by the police. I also find that I accept as reasonable the property he lists as having been lost in that fire, and as reasonable also the value he puts on each listed item. I award, to Pala Kelema, the sum of K855.80 general damages for loss of property and an additional sum of K2000.00 as exemplary damages for arson.

45. Noki Koldop deposes to being at the village sing-sing place listening to some of the men discussing the events of the previous day when he heard gun shots and saw two police vehicles upon the road. He was frightened by the gun fire and ran and hid in the bush. He returned to find that his house and several others had been broken into and looted. While that evidence would not be sufficient to convict anyone for the crime of breaking and entering I find, on the balance of probability, that Noki Koldop's house was looted by police from Mt Hagen on 27th July 1997. I also find that the items he claimed were missing and the value he places on them are both reasonable and I award him, as general damages for loss of property, the sum of K140.00 and as exemplary damages for the breaking and entering of his house and the theft of his property by those sworn to prevent such crimes, the sum of K750.00.

46. John Koldop, like Jacob Koloma, conducts a village trade store. He deposes that, on 27th June 1997 he saw two police vehicles come to the village between 12 0'clock and 10'clock in the afternoon. He became scared when police came out of the vehicles and started firing their guns, and he ran and hid in the bush.

47. He deposes to seeing police set fire to houses he identifies as belonging to John Pala Kelema and to John Maine Mirr. He also deposes to police breaking into and looting three trade stores (one of which was his). Although his evidence in that form would be insufficient to satisfy the criminal onus that it was any particular person who broke and entered these buildings, I find that, in the context of the body of evidence of the events of 27th June 1997 in Kolip village, I am satisfied on the balance of probability that John Kolip's trade store was broken into by police who then stole his property to a value of K607.20. I accept as reasonable the list of items he claims were stolen and the value he places on them. I award him general damages for loss of property in the sum of K607.20 and, as exemplary damages for the breaking and entering of his building and the theft of his possessions by persons whose duty it is to uphold the law, exemplary damages in the sum of K750.00.

48. On the same day as John Koldop's store was looted, another trade store owned by Leon Yakumbu was broken into. Leon, in his affidavit, says he was at the village sing-sing place when he heard gunshots. He ran to the main road to find out what was going on and saw two, police marked, Toyota Land Cruisers and armed policemen. He ran away and hid in the bush and saw smoke coming from the village and, when he came out from his hiding place he saw his small trade store had been forced open and looted.

49. Again, for the reasons I have given in relation to John Koldop's claim, I find that, on the balance of probability that Leon Yakumbu's small trade store was broken into and entered on 27th June 1997 by police and his property stolen. I accept his uncontroverted evidence of the items missing and the value of them and award him, as general damages for loss of property, the sum of K208.90 and, as exemplary damages for the breaking and entering of his property and the theft of goods from it, exemplary damages of K750.00.

50. In summary, I find that I am satisfied by the evidence on the balance of probability that each of the plaintiffs suffered loss of the property they claim was destroyed or made away with during a police operation on 27th June 1997. I also am satisfied that the value ascribed to the articles lost is reasonable. I find that the plaintiffs suffered the losses claimed as a result of the actions of police personnel from Mt Hagen on an apparent police operation who destroyed property in the village by arson and by breaking and entering into and stealing from buildings.

51. I make the following Formal Orders:

1. The Defendant shall pay the Plaintiffs damages in the sums set out to the persons named in the schedule attached to these orders. The judgement sum shall bear interest at the rate of 8% from the date of service of the Statement of Claim.

2. The Plaintiffs' costs of and incidental to this claim shall be paid by the Defendant, such costs to be taxed if not agreed.

3. The Plaintiffs have liberty to apply on 10 days written notice if they should experience any difficulty in obtaining compliance by the Solicitor General or the Departmental Head responsible for Finance Matters with the provisions of section 14 of the Claims By and Against The State Act.

4. Time is abridged to the time of the sealing of these Orders by the Registrar, which shall take place forthwith.

______________________________________________
Kopunye Lawyers: Lawyers for the Plaintiffs
Solicitor General: Lawyers for the Defendant