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Wani v Provincial Police Commander, Western Highlands Province [2010] PGNC 16; N3900 (22 February 2010)

N3900

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 506 OF 2001

BETWEEN

JOHN WANI
Plaintiff

AND

THE PROVINCIAL POLICE COMMANDER, WESTERN HIGHLANDS PROVINCE
First Defendant

AND

JOHN WAKON,
POLICE COMMISSIONER OF PAPUA NEW GUINEA
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Mount Hagen: Makail, J
2008: 11th June &
2010: 22nd February

TORT - False imprisonment - Unlawful arrest - Unlawful detention - Malicious prosecution - Defamation - Plaintiff charged with break and entry and stealing - No case submission at committal hearing - Charge withdrawn - Elements of - Proof of - Constitution - Section 42(3)&(6) - Arrest Act, Ch 339 - Section 3 - Bail Act, Ch 340 - Sections 1,3 & 6.

PRACTICE & PROCEDURE - Default judgment - Assessment of damages - False imprisonment - Malicious prosecution - Defamation - General damages - Special damages - Exemplary damages - Whether damages proven.

Cases cited:

Yange Lagan & Ors -v- The State (1995) N1369
Jack Topo -v- Kelly Kaman & The State (2009) N3773
Ronald Alexander McKenzie -v- The State (1998) SC596
Martha Limitopa & Poti Hiringe -v- The State [1988-89] PNGLR 364
Losia Mesa -v- Gari Baki as Commissioner of Police & The State (2009) N3681
James Gunambo & Anor -v- Sergeant Thomas John Upaiga & The State: WS No 1321 of 2001 (Unnumbered & Unreported Judgment of 25th January 2010)
David Wari Kofowei -v- Augustine Siviri & The State [1985] PNGLR 449
Mahara Ignote -v- Hualupmomi & The State [1996] PNGLR 208
Demba Kalo -v- Cornnie Akaya & The State (2007) N3213
Joe Hesingkeoc Nayos -v- Roy Gawi & The State (2008) N3484
Motor Vehicle Insurance Trust -v- Salio Tabanto [1995] PNGLR 214
Tabie Mathias Koim & Ors -v- The State & Ors [1998] PNGLR 247

Counsel:

Mr Danny Gonol, for the Plaintiff
Mr Gaure Odu, for the Defendants

JUDGMENT

22nd February, 2010

1. MAKAIL, J: In this case, the plaintiff is a 36 years old male from Wambul village in the Tambul District of the Western Highlands Province and sues the defendants for false imprisonment, malicious prosecution, and defamation of character. He claims general damages, special damages and exemplary damages against the defendants. In the statement of claim endorsed to the writ of summons filed on 24th April 2001, he alleges that on 28th September 1999, he was apprehended, arrested and charged by Mt Hagen police under the command and direction of the first defendant for break and entry and stealing of goods from Steamships Hardware building in Mt Hagen town under section 398(a)(i) of the Criminal Code, Ch 262. He was detained at Mt Hagen Police Station cells and subsequently at Baisu Corrective Institute.

2. He was detained for a period of one month and later released on bail following a successful application to the Court by his lawyers. He appeared six times at the Mt Hagen District Court for committal proceedings while in detention and out on bail. On the sixth occasion, on 7th March 2000, his lawyers made a no case submission and the police conceded to the application and withdrew the charge. He was accordingly discharged by the Court.

3. The defendants failed to file their defence within time and default judgment was entered against them on 30th November 2001. The only issue in this case therefore, is the measure of damages. It is trite law that even after entry of default judgment against a defendant, a plaintiff still bears the onus of proving his damages. The onus is discharged upon the plaintiff presenting clear and admissible evidence. In Yange Lagan & Ors -v- The State (1995) N1369 Injia, J (as he then was) said at p 4:

"In my view, the minimum requirement in any action is for the plaintiff himself to give admissible evidence in support of his claim. He is not exonerated from this duty in any way by the fact that default judgment has been entered and that the trial on assessment of damage is preceding ex parte or that he has authorised another person to give evidence on his behalf. When the primary evidence of the plaintiff is lacking, there is a serious gap in the plaintiff’s case, all other evidence being inadmissible as being hearsay or hearsay upon hearsay."

4. In the present case, the defendants offered no evidence at trial. Hence, the un-controverted evidence of the plaintiff in his affidavit sworn on 25th November 2004 and filed on 28th September 2005, (exhibit "P1") and corroborated by witnesses, Alfred Kiap Dowa in his affidavit sworn on 25th May 2006 and filed on 30th May 2006, (exhibit "P2") and his wife Helen Wani in her affidavit sworn on 3rd May 2005 and filed on 5th May 2005, (exhibit "P3") are these: the plaintiff is an employee of Telikom (PNG) Limited and based in Mt Hagen. He held the position of Assistant Regional Telikom Lands Manager (Highlands Region).

5. On 28th September 1999, he was apprehended, arrested and charged by Mt Hagen police under the command and direction of the first defendant for break and entry and stealing of goods from Steamships Hardware building in Mt Hagen town valued at K14,916.77 under section 398(a)(i) of the Criminal Code, Ch 262. He was detained at Mt Hagen Police Station cells and subsequently at Baisu Corrective Institute. He was detained for a period of one month and later released on bail following a successful application to the Court by his lawyers on 15th November 1999. He appeared six times at Mt Hagen District Court for committal proceedings while in detention and out on bail. On the sixth occasion, on 7th March 2000, his lawyers made a no case submission and the police conceded to the application and withdrew the charge. He was accordingly discharged by the Court.

6. After the ordeal, he is bitter towards policemen and despises them every time he sees them. People in his village hold a very low opinion of him. They view him as a criminal, thief and corrupt person. He out-rightly denied the allegations and even told policemen involved in arresting and charging him on numerous occasions that he was innocent but his repeated pleas fell on deaf ears. He spent K1,000.00 for legal costs and more than K5,000.00 for associated costs. As a result of the charge, he was suspended from work without pay. This has greatly affected the welfare and well being of his family. Their private family motor vehicle, a Mazda T3500 truck was damaged by the police as they alleged that it was used to transport the stolen goods to Mun village. This forced him to sell it for spare parts.

False imprisonment

7. The first claim for general damages is based on false imprisonment. I said in Jack Topo -v- Kelly Kaman & The State (2009) 3773 that, false imprisonment consists of unlawful arrest and unlawful detention of a person against his will. This is because an arrest may lead to detention though in some circumstances, there may be no arrest but only detention: see also Ronald Alexander McKenzie -v- The State (1998) SC596.

A person arrested and detained unlawfully will be entitled to general damages for the pain and suffering, and loss of amenities including humiliation, distress and hardship if he is able to prove his damages. This is because general damages is intended to compensate him for the pain and suffering, humiliation, distress and inconvenience caused by the unlawful actions of the tortfeasors. Persons who are deprived of their personal liberty as a result of been unlawfully arrested and detained have to be compensated for the shock and distress caused by the tortfeasors.

8. The purpose of an award of general damages is to compensate a person; to put that person as far as possible in the same position he or she could have been had he or she not been deprived of his or her personal liberty because of another person’s wrongful conduct. General damages are intended to be neither a reward nor a penalty: see Martha Limitopa & Poti Hiringe -v- The State [1988-89] PNGLR 364; Losia Mesa -v- Gari Baki as Commissioner of Police & The State (2009) N3681 and James Gunambo & Anor -v- Sergeant Thomas John Upaiga & The State: WS No 1321 of 2001 (Unnumbered & Unreported Judgment of 25th January 2010).

9. Bearing in mind that, in civil proceedings plaintiffs still bear the onus of proof even though default judgment is entered against the defendants, hence liability is not an issue, in the present case, can it be said that the plaintiff has proven his damages based on his evidence and that of his two witnesses? To answer this question, I have to look at the evidence presented thus far. The plaintiff’s evidence is that, he was apprehended, arrested and charged by police under the control and direction of the first defendant for committing an alleged offence of break and entry and stealing of goods worth K14,916.77 from Steamships Hardware building in Mt Hagen town under section 398(a)(i) of the Criminal Code, Ch 262. He was detained at Mt Hagen Police Station cells and subsequently, at Baisu Corrective Institute.

10. However, his evidence is unclear as to when he was arrested but it appears it may have been at the same time when he was apprehended, that is, on 28th September 1999. There is also no evidence as to who lodged the complaint against the plaintiff at Mt Hagen Police Station in relation to the alleged break and entry and stealing. Nonetheless, I would presume that he was arrested pursuant to a complaint lodged by Steamships Hardware. I can infer that because first, the goods allegedly stolen were from Steamships Hardware and ordinarily, as the owner of the goods, it would have lodged the complaint. Based on the complaint, policemen under the command and direction of the first defendant apprehended and arrested him. Secondly, the plaintiff does not dispute that he was arrested in relation to the break and entry and stealing of goods at Steamships Hardware. What damages can flow from such actions of the policemen who apprehended and arrested him?

11. In order to succeed in an action for unlawful arrest, the plaintiff must prove that police breached the Arrest Act, Ch 339. Once the plaintiff is able to establish breaches of the Arrest Act, Ch 339, it follows that the plaintiff’s personal liberty guaranteed by section 42(3) of the Constitution is also breached. This in turn means that the actions or conduct of the policemen in arresting the plaintiff are unlawful and the policemen must be held liable for damages that may arise.

12. So, where is the breach? What did the policemen do that was unlawful, in light of section 3 of the Arrest Act, Ch 339? Did they act without reasonable belief to arrest the plaintiff or had no reasonable belief that the plaintiff had committed an offence? I find no evidence from the plaintiff and his witnesses establishing that the policemen who apprehended and arrested him breached the Arrest Act, Ch 339, that is, they did not have a reasonable belief that he committed an offence. In my view, the undisputed evidence established that police acted on a complaint by Steamships Hardware and arrested the plaintiff for allegedly breaking into and stealing goods from Steamships Hardware building in Mt Hagen town. In my opinion, that established a reasonable belief that the plaintiff had committed an offence and I see nothing wrong with that belief and the actions of the policemen.

13. It may be argued or one may disagree with the course I take in this case as it would seem that, it is an attempt to resurrect the issue of liability when liability has been settled by entry of default judgment. But the obvious response to this argument is that, damages will only arise or flow where the conduct or action complained of is unlawful or wrongful and so far in this case, the evidence before the Court do not establish any wrong doing on the part of the policemen involved in the apprehension and arrest of the plaintiff. If any thing, the evidence established that they acted lawfully and, as a matter of law, there can be no damages. For these reasons, I dismiss this head of claim.

14. In relation to the claim of unlawful detention, the evidence of the plaintiff and his witnesses established that the plaintiff was detained at Mt Hagen Police Station cells and subsequently, at Baisu Corrective Institute. He was refused bail by the police. Despite his repeated pleas to the policemen that he was innocent, they pressed on with the charge. On 15th November 1999, he was granted bail by the Mt Hagen District Court following a successful application by his lawyers.

15. In order to succeed in an action for unlawful detention, the plaintiff must establish that his detention was without lawful justification. It may arise where a person is not charged with an offence upon being detained or where the person is prevented from leaving the place where he is: see Jack Topo’s case (supra) and David Wari Kofowei -v- Augustine Sirivi & The State [1983] PNGLR 449.

16. In relation to the plaintiff’s request for bail, the law is clear. Any person accused of committing an offence whether minor or indictable is entitled to bail at all times except treason and wilful murder: see section 42(6) of the Constitution and section 3 of the Bail Act, Ch 340. In the present case, the plaintiff was charged with break and entry and stealing under section 398(a)(i) of the Criminal Code, Ch 262. He said the policemen refused him bail, presumably, the arresting officer although he did not say that in his evidence. I consider that a policeman who refuses bail to an accused person is considered a "bail authority" because according to section 1 of the Bail Act, Ch 340, a "bail authority" is defined as "a person or court empowered or required under this Act or any other law to grant bail." (Underlining is mine).

17. The reference to a "person" in section 1 of the Bail Act, Ch 340, in my opinion, refers to a policeman, usually an arresting officer. That means, a policeman is authorized to refuse bail and as far as I can see in this case, the policemen or arresting officer was authorized to refuse bail, hence, there is no breach of the Bail Act, Ch 340. Further, there is no evidence suggesting that it was wrong for the arresting officer to refuse the plaintiff’s request for bail. Furthermore, there must have been a reason for refusing bail and again, I infer that the policemen or the arresting officer must have considered the charge of break and entry and stealing very serious that they refused bail.

18. And it did not matter whether the plaintiff is innocent and it begs the issue when he is repeatedly pleaded with the police of his innocence when they were not authorized by law to decide his innocence. That is a matter for the Court. In my view, what is important and relevant is that, police must have acted on the complaint of Steamships Hardware and additional information (eg, witnesses’ statements) to arrest and detained him and subsequently refused bail. I see nothing wrong with what the policemen or the arresting officer did.

19. Section 6 of the Bail Act, Ch 340, gives an accused person a right to apply for bail to the Court after he is arrested and detained. Since the plaintiff was refused bail by the police after he was arrested and detained, he had available to him at that material time, the right to apply for bail to the Court under section 6 of the Bail Act, Ch 340. He exercised that right and was granted bail through an application made by his lawyers on 15th November 1999. Given these uncontested facts, the same question is asked here and that is, has the plaintiff proven his damages? In my respectful opinion, he has not, for the evidence presented thus far do not establish any wrong doing on the part of the policemen where damages would lie. As a matter of law, no damages arise. For the foregoing reasons, I dismiss this head of claim.

Malicious prosecution

20. The second claim for general damages is based on malicious prosecution. For damages to be awarded in cases of malicious prosecution, the plaintiff must establish that, first, the defendants instituted the proceeding against the plaintiff. Secondly, the proceeding was dismissed against the plaintiff and finally, the defendant did not have a reasonable or probable cause: see Mahara Ignote -v- Hualupmomi & The State [1996] PNGLR 208; Demba Kalo -v- Cornnie Akaya & The State (2007) N3213, and Jack Topo’s case (supra).

21. In relation to the first element of malicious prosecution, it is the evidence of the plaintiff that he was charged with the offence of break and entry and stealing of goods worth K14,916.77 from Steamships Hardware under section 398(a)(i) of the Criminal Code, Ch 262. In relation to the second element, it is the evidence of the plaintiff once again that the charge was withdrawn after his lawyers made a no case submission and he was discharged. But there is no evidence of the reasons for the Court to discharge the plaintiff placed before this Court.

22. What was or were the reasons? I do not know. As for the third element, it is the plaintiff’s evidence that there was no reasonable or probable cause for the police to arrest, charge and prosecute him for this offence. He said, he was innocent and did not understand why the police pressed on with the charge.

23. In relation to the third element, it is said that in order to prove lack of reasonable or probable cause, a plaintiff must prove that, first, the defendant did not believe that the plaintiff was probably guilty of the offence, and secondly, 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: see Mahara Ignote’s case (supra).

24. In the present case, while it is true that the first and second elements of malicious prosecution are present, I am not convinced that the plaintiff has established the third element. This is because, there is evidence that the police acted with reasonable or probable cause. That is, they arrested, charged and prosecuted the plaintiff as he was a suspect in the break and entry and stealing of goods from the Steamships Hardware building in Mt Hagen town. In my view, it was a genuine and legitimate complaint. As I alluded to above and will repeat here, the police must have acted on the complaint of Steamships Hardware and additional information (eg, witnesses’ statements) to prosecute him.

25. I distinguish this case from Jack Topo’s case (supra). In that case, the plaintiff was suspected of been one of the rapists involved in the rape of two females at Nondugl coffee plantation in the Western Highlands Province on the afternoon of 31st August 2000. Around mid night, he was apprehended by locals and a police reservist at his house and brought to Nondugl police station where he was detained for questioning. He was not charged until 17th October 2000 after he demanded why he was detained. He was charged with rape of the two females. On 15th January 2001, he was released from detention following the dismissal of the charge for want of prosecution by the District Court. He sued the defendants, inter-alia, for malicious prosecution.

26. I found inter-alia, that, there was no reasonable or probable cause for the police to detain and prosecute him because they openly admitted that he was not one of the rapists and that the detention was to "cool off" the tense situation in the village between his relatives and the relatives of the female victims. In the present case, there is no evidence of the police openly admitting that he was not involved in the break and entry and stealing of goods from Steamships Hardware and that, his detention and prosecution was done to "cool off" a tense situation between his relatives and Steamships Hardware.

27. On the other hand, the Statement of Facts marked as annexure "B" to the plaintiff’s affidavit (exhibit "P1") alleged that on 26th September 1999 at about 2 O’clock in the morning, there was a break and entry at Steamships Hardware building in Mt Hagen town where goods worth K14,916.77 were stolen. There were three suspects involved in committing the offence and the fourth one was the plaintiff. He was accused of been one of the suspects because the other three suspects were caught driving his motor vehicle with the stolen goods to Mun village on 29th September 1999.

28. In my opinion, the allegation in relation to how the plaintiff became involved in the commission of the offence is very serious as it seemed he assisted the three suspects in removing the stolen goods from the owner and the police. He did not deny been the owner of the motor vehicle that transported the goods to Mun village. That being the case, I believe that is the reason for his arrest, charge and prosecution. As to the reason for the police to withdraw the charge, I do not know. As I alluded to earlier, this is because there is no evidence before the Court.

29. Be that as it may, while the police conceded to the no case application and withdrew the charge, it does not necessarily follow that there was no reasonable or probable cause for the police to prosecute him. On the other hand, I am satisfied that there was reasonable or probable cause for the police to prosecute him and they must be allowed to do that without fear or favour. Otherwise, prosecution of alleged offenders will be frustrated or undermined by people like the plaintiff. As Manuhu, J said in Joe Hesingkeoc Nayos -v- Roy Gawi & The State (2008) N3484 at p 3:

"It is a worthy reminder that it is in the public interest for police, a vital enforcement agency of the State to investigate, charge and prosecute offenders without fear of being sued. The rule of law and democracy will disintegrate and collapse if anyone acquitted is given an easy passage to sue for malicious prosecution. The tort of malicious prosecution is of course available but malice must be shown to the entire satisfaction of the Court for a malicious prosecution suit to succeed."

30. For the foregoing reasons, I am not satisfied that the policemen maliciously prosecuted the plaintiff, and as a matter of law, no damages lie. I dismiss this head of claim.

Defamation

31. The final head of damages is based on defamation. The evidence of the plaintiff is that, people in his village held a very low opinion of him. They viewed him as a criminal, thief and corrupt person. As a result of the charge, he was suspended from work without pay. This had greatly affected the welfare and well being of his family. Their private family motor vehicle, a Mazda T3500 truck was damaged by the police as they alleged that it was used to transport the stolen goods to Mun village. This forced him to sell it for spare parts. While there appears to be some evidence on defamation, there is one fundamental defect in this claim. There are no pleadings in the statement of claim setting out the material facts giving rise to this cause of action although it is noted at paragraph 13(a) that the plaintiff "[b]y reason of the matters aforesaid the Plaintiff was wrongly imprisoned and prosecuted in which he suffered injuries to his credibility, character, reputation.......... His good name, status and character as a good, law abiding senior citizen has been tarnished."

32. A replica of this pleading may be found in Jack Topo’s case (supra) where I found in that case that, it was not a pleading of material facts giving rise to the cause of action of defamation but rather, a summary statement of all the various actions pleaded or purportedly pleaded in the statement of claim. I do not see any special reason to depart from that view in the present case. Accordingly, I find that there is no cause of action of defamation against the defendants whereupon the plaintiff may claim damages against the defendants: see also Motor Vehicle Insurance Trust -v- Salio Tabanto [1995] PNGLR 214 and Tabie Mathias Koim & Ors -v- The State & Ors [1998] PNGLR 247. I dismiss this claim.

33. Alternatively, as I have found that policemen had acted on a complaint by Steamships Hardware that the plaintiff allegedly broke and entered and stole goods at the Steamships Hardware building in Mt Hagen town, and had a reasonable or probable cause to arrest, detain and prosecute him, I do not see any basis for him to complain that the actions or conduct of the police were defamatory. I find no merit in his complaint. To my mind, the actions or conduct of the policemen were proper and lawful in the circumstances. As a matter of law, no damages may lie. For the foregoing reasons, I dismiss this head of claim.

Loss of motor vehicle

34. There is one final head of damages I wish to mention before I conclude and that is, damages for loss of the plaintiff’s motor vehicle, a Mazda T3500 truck damaged by the first defendant and his policemen. The plaintiff said that as a result of severe damage, he was forced to sell it cheaply for spare parts. I make no award under this head of claim because the plaintiff did not plead it in the statement of claim or alternatively, even if it is considered, the evidence is inadequate as far as establishing the loss is concern. There is no evidence of the value of the motor vehicle before it was damaged and at the time when it was sold for spare parts. For these reasons, I dismiss the claim.

Conclusion

35. In conclusion, whilst liability has been determined by entry of default judgment, it does not automatically follow that the plaintiff is entitled to damages. On the contrary, he must prove them based on clear and admissible evidence. I have found that the plaintiff has not established his damages because he has not satisfied this Court that the actions of the first defendant and his policemen were unlawful to justify an award of damages.

Orders

36. In the final resolve, the plaintiff has not established his damages on the balance of probabilities and the entire proceeding is dismissed with costs to the defendants. The time for entry of the orders is abridged.

Judgment accordingly.

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