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Takori v Yagari [2021] PGNC 548; N9373 (29 November 2021)

N9373

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

W.S. NO. 1349 OF 2003

PHILIP LELI TAKORI, for and on behalf of himself and BEN KOMAE, JEFF LITA, TAPUKAI LI LITA, YAS LAKAIN, TOM AIPI, DAVID TIMON, PAULUS PALIRO, WILLIAM ROBERT, ANDREW MALIPU
Plaintiffs

-V-

SIMON YAGARI, as the Commander and the members of Police Mobile Squad 5 & 6
First Defendant

GARI BAKI, COMMISSIONER OF POLICE
Second Defendant

THE INDEPENDENT STATE OF PAPA NEW GUINEA
Third Defendant

Waigani: Kariko, J
2021: 18^th October & 29^th November

DAMAGES – assessment of – trespass – police raid – destruction of properties – lack of corroboration– loss not challenged – no valuation report – discount on claims for loss of property – nominal award for general damages (pain and suffering) – no evidence in support of claim for out-of-pocket expenses – exemplary damages appropriate to award – no basis to award compensation under the Constitution

Cases Cited:

Abel Tomba v The State (1997) SC518
Alphonse Willie v Simon Kaupa (2016) N6553
Anuta Jobou v Alfred Kumasi and The State (2012) N4607
Eton Pakui v The State (2006) N2977
Justin Bau v Paul Karl (2010) N4123
William Mel v Coleman Pakalia and Others (2005) SC790

Counsel:

Mr J Kama, for the Plaintiffs
Ms C Kuson, for the Second & Third Defendants

JUDGMENT ON DAMAGES

29^th November, 2021

1. KARIKO, J: This matter was tried on assessment of damages following my earlier judgment on liability. I found that the first defendant led other Mobile Squad policemen into Waem village, Enga Province, in the early morning of 4^th September 2001 and unlawfully destroyed properties belonging to the plaintiffs (excluding the lead plaintiff). Accordingly, I held the first defendant liable for trespass to property. While I decided the Police Commissioner not vicariously liable for the tortious conduct of the first defendant, I found the State to be so liable.
   
2. In this hearing, the plaintiffs claimed as relief:
   
   • K257, 705.75 for loss of properties.
   • General damages.
   • Special damages.
   • Exemplary damages.
   • Compensation under the Constitution.
   • Interest.
   • Costs.
     

EVIDENCE

3. Only the plaintiffs presented evidence at the hearing.
   
4. They first relied on affidavits previously tendered in the trial on liability:
   
   • (1) Affidavit of Philip Takori sworn 29^th Januray 2003 - Exhibit P1
   • (2) Affidavit of Constable Vince Taule sworn 11^th September 2013 - Exhibit P2
   • (3) Affidavit of Michel Mangela sworn 16^h December 2011 - Exhibit P3
   • (4) Affidavit of Yas Lakain sworn 24^th March 2009 - Exhibit P4
   • (5) Affidavit of Richard Aipi sworn 24^th March 2009 - Exhibit P5
   • (6) Affidavit of Jerry Kama sworn 13^th July 2009 - Exhibit P6
   • (7) Affidavit of Philip Takori sworn 13^th July 2009 - Exhibit P7
   • (8) Affidavit of Yas Lakain sworn 13^th October 2011 - Exhibit P8
   • (9) Affidavit of Ben Komae sworn 10^th October 2011 - Exhibit P9
   • (10) Affidavit of Michael Leeli sworn 10^th October 2011 - Exhibit P10
     
5. A further five affidavits were tendered without objection:
   
   • (11) Affidavit of Palus Paeo sworn 19^h October 2020 - Exhibit P11
   • (12) Affidavit of Masa Kia sworn 25^th November 2020 - Exhibit P12
   • (13) Affidavit of Raechel Nano sworn 21^st October 2020 - Exhibit P13
   • (14) Affidavit of Philip Takori sworn 13^th March 2021 - Exhibit P14
   • (15) Affidavit of Ricks Tanda sworn 23rd November 2020 - Exhibit P15
     
6. I summarize the evidence so far as it relevant to the issue of damages:
   
   • Phillip Takori (Exhibits P1, P7 & P14): He is from Waem village, and he was in Port Moresby when he learnt of the raid.

He instructed his brother Michael Leeli to take photographs of the destruction. On 10^th January 2002 he travelled to Waem and obtained the photographs, plus statements from the ten plaintiffs who lost their houses and other property. The statements were converted into affidavits which the plaintiffs signed in due course.

He produced twelve photographs – two depicting a typical traditional house in the village, while the other ten each purportedly showed the remains of each plaintiff’s house after being burnt down.

The witness also produced the ten affidavits by each of the plaintiffs – Ben Komae, Jeff Lita, Tapukal Lita, Yas Lakain, Tom Aipi, Richard Aipi, David Timon, Palus Paliro, William Robert and Andrew Malipu – all dated 26^th February 2002.

In respect of out-of-pocket expenses, the witness claimed K277,999.07 for expenses incurred in respect of this case and related proceedings since 2001. Expenses include air travel, land transport, food and accommodation, printing and photocopying, and legal costs.

• Yas Lakain (Exhibits P4 & P8): He said ten villagers lost a total of thirteen houses and properties. Statements concerning the loss were given to Philip Takori. Michael Leeli took photographs of the destruction caused.
  
• Richard Aipi (Exhibit P5): He also stated that ten villagers lost properties worth thousands of Kina. He personally lost K24,459.24 worth of property. Details of the losses are in his affidavit in support of his claim.
  
• Ben Komae (Exhibit P9): He stated that thirteen houses were burnt down. He lost 23 pigs. The list of properties and their values were given to Philip Takori.
  
• Michael Leeli (Exhibit P10): He took photographs of the destruction caused by the police and gave them to Phillip Takori.
  
• Palus Paeo (Exhibit P11): He is a Village Court Magistrate in Wabag who explains that villagers may own two types of houses - traditional and modern. It is usual to keep in them personal belongings, money, and traditional attire. It is also common to keep livestock.
  

The costs of building houses have doubled since 2001. The value of pigs and traditional attire (for sing sings and other ceremonies) have similarly increased.

• Masa Kia (Exhibit P12): He is an elderly Engan man living in Port Moresby. He deposed to similar evidence to that by Palus Paeo.
  
• Rachael Nano (Exhibit P13): She is also from Wabag and is a leader of a cultural sing-sing group. She noted that various items used to dress up in sing-sing have greatly increased over the past nineteen years. The comparative values given by the witness shows most items have on the average doubled.
  
• Ricks Tanda (Exhibit P15): He is also from Wabag and claims to have “extensive experience in conducting socio-economic and cultural studies in PNG”. He calculated the following valuations: traditional house (K7,700.00 - K8,000.00), modern house (K10,500 – K11,000.00) and traditional /ceremonial attire (K8,750.00).
  

7. Each plaintiff purportedly swore an affidavit that is annexed to Philip Takori’s affidavit (Exhibit P1). I will discuss these affidavits later, but for now it is noted that each of these affidavits respectively lists the properties claimed to have been lost – house (whether traditional or modern) and the contents including livestock. The houses and their contents are described, and value given to each. The amounts of loss claimed by plaintiffs are:
   
   • Ben Komae – Traditional house K6,082.00

Modern House K6,340.25

Household items K2,147.50

Traditional attire K6,124.00

Clothing K2,519.00

Pigs K10,180.00

Total K33,135.75

• Jeff Lita – Traditional house K6,082.00

Modern House K6,340.25

Household items K2,445.00

Traditional attire K10,854.00

Clothing K2,119.00

Pigs K4,800.00

Total K32,615.75

• Tapukali Lita – Modern House K6,340.25

Household items K3,600.00

Traditional attire K14,615.00

Clothing K3,2016.00

Total K27,761.25

• Yas Lakain – Traditional house K6,082.00

Modern House K6,340.25

Household items K2,082.00

Traditional attire K6,492.00

Clothing K2,519.00

Pigs K2,050.00

Total K25,565.25

• Tom Aipi – Modern House K6,340.25

Household items K2,760.00

Traditional attire K12,804.00

Clothing K3,024.00

Total K24,928.25

• Richard Aipi – Modern House K6,340.25

Household items K2,933.00

Traditional attire K12,494.00

Clothing K2,692.00

Total K24,459.25

• David Timon – Modern House K6,340.25

Household items K4,689.00

Traditional attire K9,612.00

Clothing K3.196.00

Total K23,827.25

• Palus Paliro – Modern House K6,340.25

Household items K2,422.00

Traditional attire K9,372.00

Clothing K3,784.00

Total K21,918.25

• William Robert – Modern House K6,340.25

Household items K2,131.00

Traditional attire K9,192.00

Clothing K4,123.00

Total K21,786.25

• Andrew Malipu – Traditional house K6,082.00

Household items K1,941.00

Traditional attire K9,192.00

Clothing K4,123.00

Total K20,219.00

SUBMISSIONS (SUMMARIZED)

8. The plaintiffs submitted that their damages claims have been clearly established by their unchallenged evidence. The court was urged to make these awards – loss of property as claimed by each plaintiff; K5,000.00 - K10,000.00 for general damages (pain and suffering); out-of-pocket expenses; and K1,000.00 – K2,000.00 for exemplary damages.
   
9. The defendants argued that the sums claimed for loss of property is unfounded as it is uncorroborated by an independent source such as a valuer, and that the amounts claimed be discounted by 90%.
   

CONSIDERATION

10. In deciding damages, I am guided by the principles endorsed by the Supreme Court in the case of William Mel v Coleman Pakalia and Others (2005) SC790, and particularly that:
    
    • The plaintiff has the onus of proving his loss on the balance of probabilities.
    • Corroboration of a claim from an independent source is usually required.
    • The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim.
    • If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities, and a plaintiff may be awarded nothing.
    • 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.
    • 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.
      

Special Damages

11. The major claim for the plaintiffs is for loss of property. There is no doubt that the police raid resulted in such loss to certain Waem villagers. I accept the plaintiffs suffered those losses, but did they lose the property that they claim to have lost, and how is the value of that property to be assessed?
    
12. The claim is principally based on two sources of evidence:
    
    • photographs purportedly of remains from the burnt houses; and
    • the plaintiffs’ own statements as to what they lost.
      
13. Photographs of the ruins of the houses after they were destroyed by fire are said to have been taken and printed by Michael Leeli, yet he did not produce them in court. Instead, Philip Takori tendered a set of twelve (12) photographs. Ten (10) of these purportedly show the remains of the destroyed houses. He stated these were the photographs taken by Michael Leeli. That statement is of course hearsay.
    
14. Three plaintiffs had their affidavits tendered into evidence, wherein they refer to the loss of property. These were earlier noted:
    
    • Yas Lakain (Exhibits P4 & P8): He said ten villagers lost a total of thirteen houses and properties. Statements concerning the loss were given to Philip Takori. Michel Leeli took photographs of the destruction caused.
      
    • Richard Aipi (Exhibit P5): He also stated that ten villagers lost properties worth thousands of Kina. He personally lost K24,459.24 worth of property. Details of the loss are in his affidavit in support of his claim.
      
    • Ben Komae (Exhibit P9): He stated that thirteen houses were burnt down. He lost 23 pigs. The list of properties and their values were given to Philip Takori.
      
15. The problem with considering the plaintiffs’ affidavits that are annexed to Philip Takori’s affidavit (Exhibit P1) is that while they are accepted as affidavits purportedly deposed to by each of the plaintiffs, the contents of the affidavits must be regarded as hearsay. Each of those affidavits ought to have been separately tendered into evidence and not left as annexures to Exhibit P1.
    
16. Even if the list compiled by each plaintiff in those affidavits is accepted into evidence, there is simply no corroboration regarding how the value of each item was determined. Who came up with the list of materials and items, and what source provided the value or costs attached to each of them?
    
17. Often in cases such as the present, a valuer is engaged to investigate and do a valuation of the loss. That did not happen here.
    
18. The plaintiff also sought to rely on the general knowledge of witnesses from the area to suggest that the value of the materials and items claimed are accurate and have doubled since 2001. Even if this is so, the measure of loss is the value at the time of the loss and not now.
    
19. Interestingly, the value of a house lost (whether traditional or modern) is the same for each plaintiff who claims the loss. The household items and clothing, and traditional attire destroyed are very similar for most plaintiffs. This raises some skepticism regarding the veracity of the list provided, and questions whether the plaintiffs’ losses are to the extent that they claim.
    
20. I note the two approaches adopted by Cannings J in awarding damages for loss of properties in a police raid where the evidence has been deficient and lacking corroboration – either to discount the claims by a percentage or award a global sum for each claimant. I am satisfied the approaches are proper, and I endorse them.
    
21. Instances where his Honour exercised the first approach include:
    
    • Eton Pakui v The State (2006) N2977: There was an unlawful raid by the police of Tulipato village in Enga. It was alleged the police burnt down trade stores and other buildings and destroyed and stole property, including pigs. The claims by 16 plaintiffs were each discounted by 90%.
    • Anuta Jobou v Alfred Kumasi and The State (2012) N4607: Another case of an unlawful police raid of Bom village, Madang. Houses were burned and property including gardens and livestock were destroyed. The claims by the 155 plaintiffs were each discounted by 50%.
      
22. Cases where the second approach was applied include:
    
    • Justin Bau v Paul Karl (2010) N4123: Unlawful police raid at Muledami settlement Kimbe, West New Britain. The claims were exaggerated and lacked precision. A flat figure of K10,000.00 each was awarded to each plaintiff rather than discounting each claim.
      
    • Alphonse Willie v Simon Kaupa (2016) N6553: A series of raids were conducted by police on villages in Kerowagi, Chimbu. Because of deficiencies in the evidence, the 1,687 plaintiffs who gave evidence were awarded a global sum of K5,000.00 each.
      
23. In this case, I am inclined to follow the first approach given my earlier observations about the evidence, noting that critical evidence has been presented in the form of hearsay. While I accept the plaintiffs did lose property, there is no proper corroboration of the property allegedly lost and their value. I would discount the claims by 75%. The amount I award for each plaintiff under this heading is therefore:
    

Out-of-pocket Expenses

24. K277,999.07 is claimed by Philip Takori for out-of-pocket expenses in pursuing these claims. The details are set out in his affidavit (Exhibit P14) but the claims for such items as air travel, land transport, food, accommodation, printing and photocopying, are not supported by any documentary evidence such as invoices or receipts. Legal costs are also incorrectly claimed. Some of these expenses may be sought if costs are awarded in favour of the plaintiffs.
    
25. I refuse this claim.
    

General Damages

26. General damages are intangible, non-monetary losses that do not have an exact monetary value and include mental anguish and distress.
    
27. This claim was not properly pleaded as no particulars were alleged under this heading. In submissions, counsel submitted this claim is for pain and suffering. While there is no medical evidence in support of this claim, I have no doubt the plaintiffs would been affected emotionally and mentally after losing their property in the way it happened. I will award a nominal sum of K2,000.00 to each plaintiff under this heading.
    

Exemplary damages

28. This type of damages is aimed at punishing the tortfeasor and to deter others from committing similar tortious conduct. Considering the factors stated in Abel Tomba v The State (1997) SC518 regarding exemplary damages, I have decided to award K1,000.00 to each plaintiff under this heading as I consider the conduct of the policemen quite significant and not justified.
    

Compensation

29. This relief, which is sought under Sections 57 and 58 of the Constitution is based on the claim for breach of constitutional rights. That claim was dismissed so I will not consider this relief.

INTEREST

30. Pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act, Ch. 52, I exercise my discretion to award 2% interest on the judgment sums to be applied from the date of filing this action (18^th April 2003) to the date of this judgment, a period of 18.5 years.

31. Interest equals (special damages + general damages + exemplary damages) x 2% x 18.5 years. The interest for each plaintiff is therefore:

COSTS

32. Costs shall follow the event.

ORDER

(1) Damages are payable by the State to each plaintiff as set out in the Schedule.
(2) Interest is payable by the State to each plaintiff as set out in the Schedule.
(3) The State shall pay the costs of the entire proceedings on a party-party basis, to be taxed if not agreed.
(4) Time for entry of this order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Jerry Kama Lawyers: Lawyer for the Plaintiffs
Solicitor-General: Lawyer for the Defendants

SCHEDULE

* Damages include special, general and exemplary damages