Topo v Kaman [2009] PGNC 167; N3773 (7 September 2009)

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TORT - Liability - Trespass - Police assault and battery - Unlawful detention - Malicious prosecution - No evidence to refute allegations of assault, battery, unlawful detention and malicious prosecution - Reasons for detention unsubstantiated - Policemen acting in the course of duty - Liability established - Constitution - Section 42(2)&(3) - Wrongs (Miscellaneous Provisions) Act Ch 297 - Section 1.

DAMAGES - Assessment of damages - Body injuries - Award of K5,000.00 as general damages for pain and suffering - Award of K10,000.00 as damages for unlawful detention - Award of K10,000.00 as damages for malicious prosecution - Award of K1,000.00 as economic loss - Award of K1,500.00 as nominal damages - Exemplary damages awarded against policeman.

George Kala -v- Joseph Kupo & The State (2009) N3677
Ronald Alexander McKenzie -v- The State (1998) SC596
Madiu Andrew -v- Mineral Resources Development Co Limited (2004) N2601
Demba Kalo -v- Cornnie Akaya & The State (2007) N3213
Mahara Ignote -v- Abraham Hualupmomi & The State [1996] PNGLR 308
Pawa Kombea -v- Semal Peke [1994] PNGLR 572
Motor Vehicle Insurance Trust -v- Salio Tabanto [1995] PNGLR 214
Tabie Mathias Koim & Ors -v- The State & Ors [1998] PNGLR 247
George Chapok -v- James Yali & Fred Muliupa (2008) N3474
Kawi Yawi -v- Torepa Nenga, Anton Sinawai & The State (2002) N2209
Teine Molomb -v- The State (2005) N2861
Jubilee Hambru -v- Michael Baur & The State (2007) N3193
David Haluya -v- Samson Gurel & The State (2001) N2109
Abel Tomba -v- The State (1997) SC518
James Liwa & Peter Kuriti -v- Markis Vanimo & The State (2008) N3486

1. MAKAIL J: The Plaintiff is a 29 year-old male adult from Nondugl village in Minj of the Western Highlands Province and brings this proceeding against the Defendants for damages arising from tortuous actions allegedly committed by members of the police force between 31st August 2000 and 15th January 2001. By his Writ of Summons filed on 13th November 2001, he seeks the following damages:

2. The matter came for trial on 10th June 2009 although it was originally fixed for a two days trial on 10th and 11th June. It proceeded as an ex-parte trial on liability and assessment of damages at 1:30 pm on 10th June after I had to complete hearing of a part heard trial matter which was carried over from the previous day to the morning of 10th June. Mr Gonol, counsel for the Plaintiff and Ms Doa of the Solicitor General’s office and counsel for the Defendants were both present that morning but come the afternoon, only Mr Gonol appeared. Ms Doa was nowhere to be seen.

3. As time is a precious and scarce "commodity" in this day and age, I did not wish to waste it and granted leave to the Plaintiff to proceed ex-parte pursuant to his counsel’s application and received evidence from the Plaintiff which comprised of the following:

1. His Affidavit sworn on 22nd August 2002 and filed on 23rd August 2002 (Exhibit "P1"),

2. His Affidavit sworn on 6th April 2005 and filed on 06th August 2005 (Exhibit "P2"),

3. Affidavit of Maureen Wusik sworn on 23rd March 2005 and filed on 29th April August 2005 (Exhibit "P3"),

4. Affidavit of Dr Allan Kulunga sworn on 9th March 2005 and filed on 02nd August 2005 (Exhibit "P4"),

5. Affidavit of Jack Alne sworn on 8th March 2005 and filed on 16th March 2005 (Exhibit "P5"), and

6. Affidavit of Jack Waulga sworn on 23rd March 2005 and filed on 02nd March 2005 (Exhibit "P6").

4. None of the witnesses including the Plaintiff were called to give further oral evidence, thus the Plaintiffs case is based purely on Affidavits. After close of the Plaintiffs case and as there was no representation by the Defendants to present their case, I directed the Plaintiffs counsel to file written submissions on the question of liability and also assessment of damages by or before close of business on 19th June 2009 and reserved my decision until 26th June 2009. I did not give my decision on 26th June 2009 but deferred it until today. This is my decision.

5. The first issue for determination is liability. Are the Defendants liable for the alleged wrongful actions?

6. From the above Affidavits (Exhibit "P1" to Exhibit "P6"), I deduce the following as the undisputed facts; on the night of 31st August 2000 at Nondugl in the Western Highlands Province, an alleged rape of two females occurred and it was alleged that the Plaintiff was one of the rapists. On the night of the alleged rape, he was at his house. At about midnight, some informants including a reserve policeman came to his house and knocked on the door. He answered by opening the door and saw about 10 men including a reserved policeman standing outside the house. Without any questions, these men and the reserved policeman grabbed him and dragged him down the verandah of the house. On the ground, they assaulted him by punching and kicking him all over his body.

7. As these men were beating him, the Medical Orderly of Nondugl Health Center, one John Tumun came out of the house and called out telling then to stop because they had attacked a wrong person. He told them that the Plaintiff lived with him and was not involved in the alleged rape because he was with him that evening. But these men dragged the Plaintiff all the way to Nondugl Police Station, located about half a kilometer from his house. On the way, these men continued to assault him by punching and kicking him all over his body. In the process, one of his teeth was knock out and he bled profusely that night.

8. When they arrived at the Police Station, the First Defendant and another, policeman called Thomas Kapal assaulted him again by punching him on his jaw and almost broke it. These two policemen tied his hands and threw him into the cell. At about 3:00 am, the Nondugl Coffee Plantation Manager came with a truck full of people. The Plaintiff was taken out of the cell to meet them. The Plantation Manager alleged that the Plaintiff and some other men packed raped two females at the coffee plantation. As a result, the Plaintiff was thrown back into the cell.

9. The next day, the Plaintiff was taken out of the cell to meet a big crowd of people comprising of the alleged victims’ family members and village leaders including the Plantation Manager. The alleged victims were brought forward to confirm if the Plaintiff was one of the rapists but they could not confirm so. They were ushered away and when they returned, this time they identified the Plaintiff as one of the rapists. The Plaintiff honestly believed that the alleged victims were coerced into changing their story of the alleged rape and those involved, hence he was wrongly accused.

10. He remained at Nondugl Police Station cell until 02nd September 2000 where he was transferred to Banz Police Station by the First Defendant, Constables Thomas Kapal and Akir in a white ten seater station wagon registration no. TAA-968. After being detained for more than a month, on 17th October 2000, the First Defendant and two other unidentified policemen came to the cell and took him out for a chat. They told him that he was not involved in the alleged rape incident but suggested that he should remain at the Police Station until the tense situation in the village between the relatives of the alleged victims and the actual perpetrators died down.

11. The Plaintiff rejected the suggestion to remain at the Police Station and maintained his innocence. As a result, the First Defendant was furious and put his hands on the Plaintiffs hand and told him that he (First Defendant) was formally arresting him for the crime of rape of the alleged victims. After that, the First Defendant placed him back in the cell and left.

12. From 17th October 2000, he appeared twice at the Minj District Court but on those occasions, the Magistrate told him that the police file was not ready. As a result, his case could not be heard. He was also refused bail. The first appearance was on 24th October and the second, on 21st November 2000. At other times, four in total, when his case was called at Minj District Court, he was not present because there was no vehicle to transport him from Banz Police Station cell or Baisu CIS to the Court house at Minj.

13. On the last mention of his case at Minj District Court on 21st December 2000, his father Jack Alne was present when the Police Prosecutor informed the Magistrate that the Police Investigator in charge of his case (the First Defendant) was not interested in pursuing the case anymore. Accordingly, the Magistrate dismissed the charge of rape for want of prosecution. He was not informed of the decision of the Minj District Court until 15th January 2001 when the Police Prosecutor Ben Kombuk came to Banz Police Station and took him out of the cell. Mr Kombuk signed the occurrence book and told him that he was free to leave and return to his family in Mt Hagen.

14. The Plaintiff was detained for 137 days from 31st August 2000 to 15th January 2001. During that period, he was not informed of his constitutional rights like the right to see a lawyer of his own choice, his family members and denied bail. During that period also, he was deprived from attending to his coffee garden. He lost money from selling his coffee. He says that he lost K100.00 a week. As he came from a religious family, his family also suffered given the serious allegation of rape leveled against him.

15. As a result of the repeated assaults and battery, he suffered the following injuries:

16. These injuries were confirmed by Dr Allan Kulunga, a private medical practitioner here in Mt Hagen in his Medical Report dated 23rd February 2001 where the Plaintiff sought medical treatment. See Annexure "A" of the Affidavit of Dr Kulunga (Exhibit "P4"). The report describes the type of injuries suffered by the Plaintiff as follows:

"Clinical examination, I note he lost a left upper inscisor. All the rest of the teeth are clean and without decay or dental caruis.

All his body injuries have healed. He has permanent loss of one upper front tooth which causes him some embarrassment".

17. In my view, the injuries described by Dr Kulunga are consistent with the Plaintiffs evidence that he was hit on the face, resulting in the loss of one tooth. But I am not satisfied that the loss of one teeth is attributed to the Defendants because in my view, it was not the First Defendant who inflicted that injury. The Plaintiffs evidence in his Affidavits (Exhibit "P1" & "P2") point to the 10 unidentified men and an unidentified Reserve Policeman who assaulted him at that time he received the tooth injury. The evidence is not clear as to whether the reserved policeman also assaulted the Plaintiff.

18. According to paragraphs 3, 4, 7 and 8 of the Plaintiffs Affidavit (Exhibit "P2"), he said "When I looked out form (sic) the dim house hold kerosene lamp, I saw 10 man (sic) including one reserved policeman. Without asking any question, they grabbed my hand and dragged me down the verandah and started kicking me and punching me from all sides. The men came and dragged me to the Nondugle Police Station. Along the way from my house to the Police Station, I was punched and kicked and in the process one of my front tooth (sic) was knocked out of its socket and I was bleeding very badly." In my view, this statement is too vague. It does not say if the unidentified reserved policeman assaulted the Plaintiff and knocked his tooth out.

19. In any case, I am not satisfied if these unidentified men and the unidentified reserve policeman were acting in the course of their duties when they came to apprehend and subsequently assaulted and battered the Plaintiff. It seems to me that these unidentified men went looking for the Plaintiff with a view of apprehending and bringing him to the police station for the police to arrest and charge him. In such a case, I am of the view that the Defendants should not be held liable for these unidentified men’s actions.

20. For these reasons, I am not satisfied that the Defendants are liable for the loss of the Plaintiffs tooth.

21. But I am satisfied that the First Defendant and Constable Thomas Kapal assaulted and battered the Plaintiff at Nondugl Police Station in the early hours of the morning of 1st September 2000. As I said in my recent judgment of George Kala -v- Joseph Kupo & The State (2009) N3677, "The above facts describe a typical case of police assault and battery. They also describe a case of brutality and use of excessive force against an innocent and defence-less man".

22. I note that the Defendants have filed a defence on 22nd October 2002 denying any assault and battery of the Plaintiff by policemen including false imprisonment and malicious prosecution of the Plaintiff. But they have admitted that the Plaintiff was detained at the Banz Police Station, for allegedly raping two females at the Nondugl Coffee Plantation. However, neither the Defendants nor their lawyers appeared at the trial to lead evidence to establish these defences.

23. Hence, in the absence of any evidence denying the assault and battery of the Plaintiff including the detention of the Plaintiff, I am satisfied on the balance of probabilities that the First Defendant and Constable Thomas Kapal assaulted and battered the Plaintiff at the Nondugl Police Station in the early morning of 1st September 2000. I enter judgment on liability against the Defendants for assault and battery.

24. In respect of the claim for false imprisonment, it is the Plaintiffs case in paragraphs 10 to 17 of the Statement of Claim that he was not arrested by the First Defendant even though he was brought to the Police Station on 1st September 2000 and detained until 17th October 2000. On 17th October 2000, the First Defendant charged the Plaintiff with rape. From 1st September 2000 until 17th October 2000, he says that his detention was wrongful or without basis, thus he is entitled to damages.

25. Mr Gonol submits that the First Defendant’s action in detaining and not laying a charge upon the Plaintiff within a reasonable time was in breach of the Plaintiffs constitutional right under section 42(2) of the Constitution. Section 42(2) states:

(a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and

(c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,

and shall be informed immediately on his arrest or detention of his rights under this subsection."

26. He further submits that the First Defendant’s action in not charging the Plaintiff within a reasonable time is not only in breach of the Plaintiffs constitutional right under section 42(2) of the Constitution but also amounts to false imprisonment.

27. The Oxford Advanced Learner’s Dictionary 7th ed, Oxford University Press at p 528 defines false imprisonment as, "the crime of illegally keeping somebody as a prisoner somewhere". An action for false imprisonment is one that "protects the interest in freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either actively causing his confinement or preventing him from exercising his privilege of leaving the place in which he is." See, The Law of Torts, Law Book Co (9th ed 1998), John G Fleming at p 33.

28. The learned author of The Law of Torts, (supra), Professor John G Fleming continued at p 33 that "It is now regarded as a sufficient deprivation of freedom if ..........................a policeman without actually laying hands on the plaintiff or formally arresting him gives him to understand that he must submit or else be compelled." In my view, false imprisonment involves unlawful arrest and unlawful detention of a person against his will.

29. But, unlawful arrest and unlawful detention are two different actions although they are intertwined. This is because an arrest of a person may lead to his detention. Sometimes, there may be no arrest but only a detention of a person. As the Supreme Court said in Ronald Alexander McKenzie -v- The State (1998) SC 596 at 5-6:

"The process of "arrest" under the "Arrest Act" ordinarily involves the deprivation of liberty of the person arrested: it involves some form of physical or non-physical "detention". As the Supreme Court, per Kapi Dep. CJ, stated in State -v- Songke Mai (supra) at p.69:

"It is clear from this Act (Arrest Act) that "arrest is the initial step of depriving a person of his liberty is continually deprives for a period. To put the matter differently, "arrest" and "detention" are two distinct procedures under the law and deprivation of liberty, which is common to both, commences upon "arrest" and "detention". The moment a person is "arrested", he is "detained" from that point on. "Arrest" is very closely followed in point of time by "detention". That is the law relating to "arrest" and "detention" in relation to persons who are suspected of committing a crime".

The use of the word "unlawful" in s.355 of the Criminal Code, means a detention is unlawful unless it is authorised or excused by law. By virtue of s.32 of the Criminal Code in conjunction with s.355, it is a defence to a charge under s.355 that the person making a citizens’ arrest and subsequent detention under the Arrest Act was done "in execution of the law": A lawful "detention" following a lawful "arrest" under the Arrest Act comes within the meaning of s.32 of the Criminal Code Act, hence a defence to a charge of unlawful detention under s.355."

30. I will first deal with unlawful arrest. In an action for unlawful arrest, the first issue is the power of the police to arrest the Plaintiff and secondly, the issue of breaches in the process of arrest by the police. The power to make arrest is found under section 3 of the Arrest Act Ch 339. It states:

A policeman may, without warrant, arrest a person whom he believes on reasonable grounds -

31. It is noted that section 42(3) of the Constitution recognizes and gives effect to the power of the police to arrest and it states:

(a) for the purpose of being brought before a court in the execution of an order of a court; or

(b) upon reasonable suspicion of his having committed, or being about to commit, an offence,

shall, unless he is released, be brought without delay before a court or a judicial officer and, in a case referred to in paragraph (b), shall not be further held in custody in connection with the offence except by order of a court or judicial officer."

32. In my view, section 42(3)(b) of the Constitution makes it mandatory that a person accused of committing an offence must not be held further in custody unless by an order of a Court or judicial officer.

33. The facts of this case show that the Plaintiff was brought to Nondugl Police Station for allegedly raping two women at Nondugl coffee plantation. In my view, this is a case where the Plaintiff was not arrested but simply brought in and detained upon a reasonable suspicion of committing rape in accordance with section 42(3)(b) of the Constitution.

34. But there is a problem with the pleadings in paragraphs 10 to 17 of the Statement of Claim. They do not plead breaches of the Arrest Act Ch 339 so as to tell the Court how the arrest is unlawful. So how would the Court know that breaches of the Arrest Act Ch 339 have occurred? In my view, it is one thing drawing the Court’s attention in submissions to the alleged breaches of the Arrest Act Ch 339 and it is another thing to plead them. For it is trite law that pleadings "lay the foundation for a claim and dictate the kind of evidence the parties can call and the grant of a relief subject to evidence proving it." See Madiu Andrew -v- Mineral Resources Development Co Limited (2004) N2601, per Kandakasi J.

35. Davani J, followed this reasoning in Demba Kalo -v- Cornnie Akaya & The State (2007) N3213, a case of alleged unlawful arrest and detention where Her Honour said:

"The plaintiff does not plead breaches of the Arrest Act chapter no. 339, only pleading in his writ, breaches of Constitutional rights and Malicious Prosecution. The claim for breach of Constitutional rights relates to the plaintiffs allegations that he was not told of the reasons for his arrest and that he was unduly detained in the police cells for about 28 hours. The only claim properly pleaded and before me is that the plaintiff was ‘unduly detained’. In relation that, the plaintiff was told that he was held in custody on suspicions of having assaulted somebody. The plaintiff does not plead the relevant sections of the Constitution that were allegedly breached nor does he plead relevant sections of the Act that were allegedly breached. The court will only consider matters properly pleaded. "

36. In the present case, there are no specific pleadings in relation to facts relevant to the issue of unlawful arrest. For example, there are no pleadings showing that the Plaintiff was arrested without a warrant or for no reason and the breaches of the provisions of the Arrest Act Ch 339 by the Defendants. On the other hand, the pleadings show that the Plaintiff was simply brought to the police station for an alleged rape incident. That was the reason but he was not arrested and charged immediately.

37. Thus, I am afraid I have to say, the Plaintiff in this case has not pleaded breaches of the Arrest Act Ch 339, to enable to the Court to identify the basis of the unlawful arrest. This means that first, he is not entitled to lead evidence and make submissions in support of an action for unlawful arrest. Secondly, there is no cause of action against the Defendant for unlawful arrest. For these reasons, I dismiss the action for unlawful arrest.

38. I now turn to unlawful detention action. For this action, I am satisfied that the Plaintiff has pleaded the material facts giving rise to his unlawful detention in paragraphs 10-17 of the Statement of Claim. He alleges that first, he was detained by the First Defendant for allegedly raping two women at Nondugl coffee plantation. On 1st September 2000, he was brought to the police station but was not charged with any offence until 17th October 2000. Secondly, the alleged victims had identified him as not the culprit during an identification parade at the police station, hence there was no reason for the First Defendant to detain him any further. Thirdly, had it not been for his protest against his detention after the First Defendant informed him that he was not involved in the alleged offence, he would not have been charged and would have remained in the police station cell.

39. There is no doubt in my mind that the Plaintiff was detained without being charged for an offence for 47 days. That is a long time and I fail to see why the First Defendant did not decide whether or not to charge the Plaintiff earlier than that. There is also no doubt in my mind that the Plaintiff was detained for a reason that the First Defendant as the police investigating officer could not substantiate with evidence. Even the identification parade before the alleged victims could not identify him in the first instance. Upon the second attempt, the alleged victims were able to identify him as one of the alleged rapists. But I accept his evidence that he honestly believed that the victims were coerced into changing their story the second time and as a result, he was wrongly identified as one of the alleged rapists.

40. He was detained at Banz Police Station cell, Mt Hagen Police Station cell and Baisu CIS. I also accept that, had it not been for his protest against his detention after the First Defendant informed him that he was not involved in the alleged offence, he would not have been charged and would have remained in the police station cell. If anything, the First Defendant charged him for rape simply to avoid any serious repercussions. But in my view, it came too little, too late, because he was held for 47 days without being charged.

41. I accept Mr Gonol submissions that, the First Defendant’s action in detaining and not laying a charge upon the Plaintiff within a reasonable time was in breach of the Plaintiffs constitutional right under section 42(3) of the Constitution, cited above. It was unlawful and a deprivation of his liberty. I also accept Mr Gonol’s submission that the First Defendant was acting in the course of his duties when he unlawfully detained the Plaintiff. I find the Second Defendant vicariously liable for the unlawful actions of the First Defendant pursuant to section 1 of the Wrong (Miscellaneous Provisions) Act Ch 297.

42. For these reasons, I find the Defendants liable and enter judgment against them.

43. The Plaintiff also brings an action for malicious prosecution. This can be seen in paragraphs 17 to 24 of the Statement of Claim. He alleges that he was maliciously prosecuted because first, he was charged for an offence that had no substance and secondly, the First Defendant knew or was well aware of his innocence after the alleged victims identified him as not being one of the persons involved in the alleged rape of the victims. Thirdly, that the charge was dismissed for want of prosecution after 6 appearances in Court due to the police file not being ready for presentation to Court.

44. The principles of law relating to malicious prosecution are set out in the case of Mahara Ignote -v- Abraham Hualupmomi & The State [1996] PNGLR 308. These were;

"1. The tort of malicious prosecution is committed if arrest is procured maliciously and without probable cause.

2. Malice may be inferred where the defendant has a purpose other than bringing an offender to justice: Herniman v Smith [1938] AC 305 cited.

(a) That the defendant must have been instrumental in instigating the proceedings;

(c) That the proceedings instigated must be done maliciously and without reasonable and probable cause.

4. The decision to lay a charge by a policeman investigating the crime is an unfettered discretion without direction, interference or orders from any other policeman or officer whether of the same or of a superior rank. Sections 22 and 43(b) of Police Force Regulation does not apply in the decision to lay charges by policemen of persons who break the law.

5. Malicious prosecution is counter to the policy of freedom to prosecute suspected criminals and thus the requirement that there must be an absence of reasonable and probable cause.

(a) That the defendant did not believe that the plaintiff was probably guilty of the offence, and

(b) That a person of ordinary prudence and caution would not conclude, in the light of the facts in which he honestly believed, that the plaintiff was probably guilty."

45. See also Davani J’s discussions on the subject in Demba Kalo’s case (supra). I summarize the principles below:

1. Who is the prosecutor? That is, if the Defendant is the "prosecutor", the Plaintiff must show that the Defendant played an active role in the proceeding by setting them in motion or by adopting or continuing them.

47. In the present case, there is no doubt in my mind that when the 10 unidentified men including the unidentified reserved policeman apprehended and brought the Plaintiff to Nondugl police station in the early hours of the morning of 01st September 2000 and handed him over to the First Defendant, he became the officer responsible for investigating and "prosecuting" the Plaintiff in the sense that, he was to properly investigate and compile appropriate evidence from eye witnesses to present to the police prosecutor to then, present to Court.

48. He did not do so. Instead, he held the Plaintiff in custody and even when the alleged victims identified the Plaintiff as not being one of the rapists, he continued to detain him. The First Defendant also openly admitted to the Plaintiff that the Plaintiff was not involved in the rape of the alleged victims but yet continued to detain the Plaintiff. When the Plaintiff protested against his detention, that was when the First Defendant charged him for the offence of rape. Thereafter, he did nothing to properly investigate and compile evidence against the Plaintiff except to detain the Plaintiff and have the Plaintiff either brought to Court for mention or none at all.

49. I am satisfied that the First Defendant played an active role in the criminal prosecution of the Plaintiff by first taking over the investigations and continuing them until the matter was struck out for want of prosecution.

50. In the present case, it is abundantly clear that the criminal proceeding terminated in favour of the Plaintiff when the District Court dismissed the charge of rape against the Plaintiff for want of prosecution on 21st December 2000. This was after 6 mentions in Court, 2 of which the Plaintiff attended in person.

51. In respect of whether there was absence of reasonable and probable cause in prosecuting the Plaintiff, I am once again satisfied that the First Defendant did not have reasonable and probable cause to prosecute the Plaintiff for the offence of rape. As I have said above, first, the alleged victims identified the Plaintiff as not being one of the rapists, but the First Defendant continued to detain him. Secondly, the First Defendant openly admitted to the Plaintiff that the Plaintiff was not involved in the rape of the alleged victims but yet continued to detain him. When the Plaintiff protested against his detention, that was when the First Defendant charged him for the offence of rape.

52. In my view, the above facts demonstrate a clear case of a person acting without proper cause to prosecute the Plaintiff. There is absolutely no where in the world a prosecutor would secure a conviction if the identification process reveals that an alleged offender like the Plaintiff is not the one involved in the commission of the offence. So why would a "prosecutor" like the First Defendant, persist on "prosecuting" the Plaintiff? I find no reasonable or probable answer to this question.

53. Was there malice in this case? Did the First Defendant act with malice? I am able to say that there was malice because the evidence so far does show that the First Defendant had a purpose other than bringing the Plaintiff to justice. In other words, I find from the evidence that the First Defendant had an ulterior motive when he charged the Plaintiff for the offence of rape.

54. What is apparent from the evidence is that, the First Defendant detained the Plaintiff to make the family members of the alleged victims "happy" as there was a tense situation in the village between the relatives of the alleged victims and the relatives of the Plaintiff and other suspects involved in the alleged rape. In my view, that was the motive and it was maliciously achieved by the Plaintiff being detained so that the tense situation back in the village "cooled off". This is not the way the First Defendant or any policemen for that matter should deal with a tense situation, especially where it is done at the expense of an innocent person who is presumed innocent until proven guilty according to law by virtue of section 42(4)(a) of the Constitution.

55. All in all, I am satisfied on the balance of probabilities that the Plaintiff was maliciously prosecuted by the First Defendant and I hold the Second Defendant liable under the principles of vicarious liability pursuant to section 1 of the Wrongs (Miscellaneous Provisions) Act Ch 297.

56. The Plaintiff also brings an action for defamation of character. In paragraph 24 of the Statement of Claim, the Plaintiff states: "By reason of the matters aforesaid, the Plaintiff was wrongfully imprisoned and deprived of his liberty and he was greatly injured in his credit, character and reputations, and he suffered considerable trouble, inconvenience, anxiety and expense, and he has been greatly injured in his reputation and he has suffered loss and damage." (Underlining is mine).

57. In his written submission, Mr Gonol submits that the Plaintiff was defamed by the actions of the First Defendant and Constable Thomas Kapal when they assaulted and verbally abused him in front of the alleged victims, their relatives and the Plantation Manager at the Nondugl Police Station on 01st September 2000. He was publicly ridiculed by the First Defendant and Senior Constable Thomas Kapal, thus for these reasons, he should be compensated with damages for defamation of his good character.

58. He also points to the Plaintiffs strong religious faith in God and good standing in the community and submits that the Plaintiff and his family had been ridiculed and good name and reputation tarnished by the serious allegation leveled against the Plaintiff. For these, the Plaintiff should be compensated accordingly.

59. Mr Gonol suggests K100,000.00. He refers to Pawa Kombea -v- Semal Peke [1994] PNGLR 572 where Kapi DCJ, (as he then was) awarded K10,000.00 to the Plaintiff as damages for defamation of character. But, Mr Gonol submits that the present case should attract a higher award than K10,000.00 because the Plaintiff was highly defamed when he was wrongly accused of committing rape. When such allegation is held against his family’s religious background and good standing in the community, the allegation is highly defamatory.

60. But the difficulty I am having in determining liability is that, there are absolutely no pleadings by the Plaintiff in the Statement of Claim endorsed to the Writ of Summons to support the claim. What he has pleaded in paragraph 24 of the Statement of Claim which I have had the trouble of citing above is not pleading the material facts giving rise to an action in defamation. It is in fact a summary statement of all the various actions pleaded or purportedly pleaded by the Plaintiff in the Statement of Claim.

61. In other words, there is no cause of action for defamation against the Defendants. For this reason, in my view, the Plaintiff is not entitled to claim damages for defamation of character even though there is some evidence supporting it. See Motor Vehicle Insurance Trust -v- Salio Tabanto [1995] PNGLR 214 and Tabie Mathias Koim & Ors -v- The State & Ors [1998] PNGLR 247. I dismiss the action based on defamation of character.

62. Having held the Defendants liable for the tortuous actions against the Plaintiff, the next issue I have to determine is the amount of damages I should award to the Plaintiff as restitution.

63. The first head of damages the Plaintiff claims is general damages for the pain and suffering. In Demba Kalo’s case, (supra) Davani J, awarded K5,000.00 as damages to the Plaintiff as a result of being assaulted by policemen and suffered bruises to his face and body. Her Honour also awarded K20,000.00 as general damages for loss of 35 % efficient loss of use of both eyes. I followed that decision in my recent judgment in George Kala’s case (supra) where I awarded K5,000.00 as general damages for pain and suffering to the Plaintiff for facial and right forearm injuries as a result of police assault and battery along Okuk highway and also at the Mt Hagen Police Station.

64. In this case, I am satisfied that the injuries suffered by the Plaintiff are similar to the injuries suffered by the Plaintiff in Demba Kalo’s case (supra), especially the bruises to the face and body. But I am not satisfied that the loss of one teeth by the Plaintiff should increase the award because as I have found on liability, that injury was occasioned by persons other than the First Defendant and it occurred prior to the assault and battery at Nondugl Police Station on 01st September 2000.

65. Therefore, I am not going to increase the award. It will remain at K5,000.00. Apart from that reason, I think in order to maintain some consistency and uniformity in general damages awards in police assault and battery cases where injuries maybe similar or same, Courts should follow awards in past cases. The Demba Kalo’s case (supra) is one and I have added the case of George Kala (supra) to the list of such cases. I would also add this one to the list.

66. I would also add George Chapok -v- James Yali & Fred Muliupa (2008) N3474, Cannings J, where the Court awarded K5,000.00 as general damages for bodily injuries occasioned by the Defendants on the Plaintiff. The Plaintiff suffered 1 cm long laceration to the left side of his nose and a small contusion (bruise) to the right side of his chin where the Defendants punched him. In this case, the Plaintiff suffered body contusion and abrasions. I see no exceptional reason to go higher than K5,000.00. I award K5,000.00.

67. Secondly, the Plaintiff claims damages for false imprisonment. As I have dismissed the action for unlawful arrest, but held the Defendants liable for unlawful detention, I shall consider an award for unlawful detention hereunder.

68. There is no doubt in my mind that the Plaintiff was detained for 137 days. There is also no doubt in my mind that the Plaintiff was detained for a reason that the First Defendant as the police investigating officer could not substantiate with evidence. Even the identification parade before the two victims could not confirm him in the first instance. Upon the second attempt, the victims were able to identify him as one of the alleged rapists. But I accept his evidence that he honestly believed that the victims were coerced into changing their story the second time and as a result, he was wrongly identified as one of the alleged rapists.

69. He was detained at Banz Police Station cell, Mt Hagen Police Station cell and Baisu CIS. The facts support an award of damages under this head of damages and so the question is; how much should I award to the Plaintiff? Mr Gonol submits that the Court award K49,000.00 calculated that K1,000.00 per day to cover for 49 days for time spent in detention.

70. In this regard, the Plaintiff was detained for a total of 137 days from 01st September 2000 to 15th January 2001. On 15th January 2001, he was released by Police Prosecutor Mr Kombuk. I also take into account that he is young man and during the whole period he made no contact with his parents and relatives. Further, he was not accorded any opportunity to speak to a lawyer of his own choice and was not given any opportunity to apply for bail.

71. I look at past cases to guide me in my assessment of a fair and reasonable amount to award under this head of claim and the first case is Kawi Yawi -v- Torepa Nenga, Anton Sinawai & The State (2002) N2209, where Jalina J, awarded K2,000.00 to the Plaintiff for being detained for 8 days in the police cells at Mt Hagen Police Station after the police (Defendants) failed to lay charges on him. The second case is Pawa Kombea (supra) where Kapi DCJ, (as he then was) awarded among things, K4,000.00 to the Plaintiff for false imprisonment at Mendi Police Station for 4 days from 01st to 04th November 1991. His Honour did not indicate whether the K4,000.00 for 4 days meant K1,000.00 was awarded for each day nor did His Honour make any detailed assessment to reach the figure of K4,000.00.

72. In the present case, I am of the view that given the long period of detention of 137 days, this is a more serious case than Kawi Yawi’s case (supra) and Pawa Kombea’s case (supra). I consider a fair and reasonable amount is K10,000.00 and I so order.

73. Thirdly, the Plaintiff seeks damages for malicious prosecution. In his written submissions, Mr Gonol submits that since the Plaintiff was charged with rape, and that the charge was dismissed by the District Court, the Plaintiff should be compensated by an award of damages for malicious prosecution. He submits, K100,000.00 would be a fair and reasonable amount to award in this case.

74. The first matter I wish to raise in relation to the proposed figure is that, it is outrageous and highly inflated. There is no where in the world that the Court would award such an amount because first, how in the world did Mr Gonol arrive at that figure? He has not pointed me to any case authorities to persuade me to award K100,000.00 and I think counsel should be very careful in placing a figure as high as this one in this kind of case because it may create a false hope on the part of the Plaintiff. The second matter is that, Mr Gonol has not referred to any guiding principles of law to assist me work out if this case is worth K100,000.00. For these reasons, I am not going to award K100,000.00. The amount I am going to award will be much, much less than that.

75. Returning to the issue at hand, I accept that in the present case, the Plaintiff was maliciously prosecuted for something that the Defendants could not prove and he was made a "scape goat" for the sins of others. To my mind, this is a serious case which warrants an award in the range of K10,000.00 to K15,000.00. I look at some past cases to guide me in my assessment of a reasonable and fair amount. The first one is Pawa Kombea (supra). Kapi DCJ, (as he then was) awarded K15,000.00 comprising of:

1. issue of the search warrants	K 2,500.00
2. criminal proceedings	K 7,500.00
3. civil proceedings	K 5,000.00
Total	K15,000.00

76. The second case is Teine Molomb -v- The State (2005) N2861, where Cannings J, awarded a global sum of K9,000.00 as general damages for unlawful detention, stress and anxiety including malicious prosecution. The third case is Jubilee Hambru -v- Michael Baur & The State (2007) N3193. There, Gavara Nanu J, awarded K12,000.00 to the Plaintiff for malicious prosecution after the charge of armed robbery was dismissed for want of prosecution. This was after 12 Court appearances by the Plaintiff and after the police were not ready with the case.

77. A case which attracted an award over K15,000.00 for malicious prosecution is David Haluya -v- Samson Gurel & The State (2001) N2109, where Sakora J, awarded K18,200.00 to the Plaintiff for malicious prosecution. In that case, the Plaintiff was a local businessman and operated a club where he sold beer. The Defendants, being policemen confiscated 30 cartons of beers and also arrested, charged and detained the Plaintiff for selling beers illegally.

78. The Plaintiff appeared before the District Court and was tried. The District Court dismissed the charge and ordered the Defendants to return the beers. The Plaintiff asked the Defendants to return them but the Defendants did not because they had consumed them. The Defendants had the Plaintiff recharged with the same offence and brought before the Court. He was convicted and sentenced to pay a fine of K200.00 by 4:06 pm on the same day, in default 6 months imprisonment in hard labour. He was unable to pay the fine and had to serve time in prison.

79. The Plaintiff sued the Defendants inter-alia for malicious prosecution. In awarding K18,200.00, His Honour said, "In the light of the brief discussion of the law (supra), it is the opinion of the Court that wrongful arrest and false imprisonment are not same as would appear at first impression.. Under the circumstances of the case, the latter tort refers only to the 6 months imprisonment served upon the blatant manipulation the legal/judicial system by the first defendant. Amongst other illegalities and abuses, there was here a complete disregard for the principle of autrefois acquit."

80. Bearing in mind the awards made in the above cases, I think a fair and reasonable amount is K10,000.00 given the nature of the allegation against the Plaintiff and appalling manner of administering the entire prosecution of the charge against him by the First Defendant. I award K10,000.00.

81. The fourth head of damages is exemplary damages. In his written submissions, Mr Gonol submits that there should be an award under this head of damages because the Plaintiff had incurred costs of transportation, legal fees, accommodation and photocopies. He asks for K8,500.00.

82. But except for legal costs (which can be claimed separately in this proceeding), the Plaintiff has not provided receipts of payments for transportation costs, accommodation costs and photocopying costs. Further, he has not explained how he has incurred these costs.

Nonetheless, I am satisfied that in a cases such as this, where a Plaintiff lives outside Mt Hagen town would no doubt incur costs of transportation, accommodation and perhaps photocopying to pursue a claim for damages against the Defendants. Therefore, I consider that it is an appropriate case where I should award nominal damages.

83. I have no evidence before me to guide me to asses the transportation costs from Nondugl to Mt Hagen, accommodation costs in Mt Hagen town, and photocopying costs. Further, there is no evidence before me of the number of trips the Plaintiff made to Mt Hagen to pursue the claim with his lawyers. However, doing the best I can, I would award K1,500.00 as nominal damages and I so order.

84. The fifth head of damages is exemplary damages. In his written submissions, Mr Gonol submits that first, the assault inflicted on the Plaintiff is unconstitutional and secondly, the inhuman treatment administered by the policemen against the Plaintiff including his prolonged detention is also unconstitutional. He submits that exemplary damages are awarded first to punish the tortfeasor and secondly, to compensate the victim or the injured party for the loss suffered. He asks for K100,000.00 for exemplary damages.

85. It is settle law in this jurisdiction that the State cannot be held liable for exemplary damages for actions of its agents and servants like the policemen in this case. I made this position very clear after I referred to the Supreme Court judgment of Abel Tomba -v- The State (1997) SC 518 in James Liwa & Peter Kuriti -v- Markis Vanimo & The State (2008) N3486, where I said at p 27:

"The Plaintiffs also claims K 5,000.00 and K 10,000.00 as exemplary damages against all the First Defendants and also the Second Defendant. But the law and case authorities now say that for exemplary damages, the Second Defendant cannot be held liable for the wrongful acts and or omissions of its servants and agents. See the cases of Aimon Aure & Ors -v- Captain Peter Boko & The State [1996] PNGLR 85 and Abel Tomba -v- The State (1997) SC 518. These were illegal police raids cases but the principle of law is the same as it is now settled that if individual policemen are identified, they must be held liable for exemplary damages."

86. In James Liwa & Peter Kuriti’s case (supra), the Plaintiffs named the individual policemen involved in the confiscation of the Second Plaintiffs diver’s licence and PMV licence as First Defendants and the State as the Second Defendant and asked for the State to pay exemplary damages for their illegal actions. I rejected the Plaintiffs’ submission that the State should be held liable for exemplary damages on behalf of the First Defendants but instead held each of the First Defendants liable and ordered each to personally pay K2,000.00 to the Plaintiffs. I did so because they were specifically named as Defendants in the proceeding and yet failed to turn up for the trial even though they were represented by Ms J Tindiwi of the Solicitor General’s office.

87. In this case, I will follow the cases of Abel Tomba (supra) and James Liwa & Peter Kuriti’s (supra) and award exemplary damages against the First Defendant only because he has been named in the proceeding but has failed to attend with his lawyers to defend it. I order that the First Defendant shall pay K2,000.00 to the Plaintiff as exemplary damages.

88. Finally, the Plaintiff claims damages for economic loss. He pleads this claim by particularizing it in paragraph 25(a) of the Statement of Claim. He says that as a result of his unlawful detention and prosecution, he was unable to work on his half a hectare coffee garden to make money for 137 days or 5 months which is equivalent to 20 weeks. He says in paragraph 13 of his Affidavit (Exhibit "P2") that he earns K100.00 a week from sale of coffee. His claim is confirmed by the Rural Development Officer, Jack Waugla in his Affidavit (Exhibit "P6"). Therefore, I am satisfied that the Plaintiff is a coffee farmer. Multiplying K100.00 by 137 days or 20 weeks gives K2,000.00. He says that he lost that amount when he was detained by the First Defendant after he was apprehended on 01st September 2000.

89. I have considered the proposed amount of K100.00 per week and in my view seems reasonable. For a period of 20 weeks is K2,000.00 but I will apportion it in half to take into account that, first, not every week he would have sold coffee as he would have done other things during the week and that, secondly, coffee is a seasonal crop and would not have borne enough cherry beans for him to make that amount of money a week. Therefore, I award K1,000.00 as economic loss.

90. The Plaintiff also claims interest on damages. Section 1 of the Judicial Proceedings (Interest on Debts and Damages) Act 1962 provides that interests maybe awarded in the following terms:

(1) Subject to Section 2, in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgement is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgement.

(2) Where the proceedings referred to in Subsection (1) are taken against the State, the rate of any interest under that subsection shall not exceed 8% yearly."

91. By section 1 of the above Act, interest maybe awarded at a rate of up to 8% per annum on either the whole or part of the debt or damages for the whole of the period between the date on which the cause of action arose and the date of judgment or on the whole or part of the debt or damages for the part of the period between the date on which the cause of action arose and the date of judgment.

92. In the present case, I am inclined to award interest at the maximum rate of 8% on the whole of the damages for part of the period between the date on which the cause of action arose and the date of the judgment. That is, from the date of the issue of the Writ of Summons filed on 13th November 2001 to the date of judgment of 7th September 2009. The reason for doing that is because there has been a long delay in bringing this matter to an end and I think it is only fair that the Plaintiff be compensated for missing out all this time.

93. Proceeding on this premise, I calculate 8% interest on the total damages excluding exemplary damages as follows:

* 8 % of the total judgment sum of K27,500.00 per annum, (General damages, Special damages and Economic loss) is K2,200.00.

1. General damages for pain and suffering	- K 5,000.00
2. General damages for unlawful detention	- K10,000.00
3. General damages for malicious prosecution	- K10,000.00
4. Nominal damages	- K 1,500.00
5. Exemplary damages	- K 2,000.00
6. Economic loss	- K 1,000.00
7. 8% interest	- K16,244.82
Total	K45,744.82

1. The Second Defendant shall pay a total sum of K25,000.00 to the Plaintiff as general damages for pain and suffering, unlawful detention, and malicious prosecution.

2. The Second Defendant shall pay K1,500.00 to the Plaintiff as nominal damages.

4. The First Defendant shall pay K2,000.00 to the Plaintiff as exemplary damages.

5. The Second Defendant shall pay K16,244.82 to the Plaintiff as 8% interest from the date of the issue of Writ of Summons to the date of judgment.

6. The Defendants shall pay the costs of the proceeding to be taxed if not agreed.

7. The time for entry of these orders shall be abridged to the date of settlement by the Registrar which shall take place forthwith.

Paulus Dowa Lawyers: Lawyers for the Plaintiff
Acting Solicitor General: Lawyers for the Defendants

National Court of Papua New Guinea

Topo v Kaman [2009] PGNC 167; N3773 (7 September 2009)