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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS. NO.1488 OF 2011
BETWEEN
GLEN OTTO KIPAHI
Plaintiff
AND
STEVEN NAMBOS, JAMES YOKO, JEFFERY NOMINO, BAI WGULA
First Defendants
AND
FRED MATHEW
Second Defendant
AND
JOSEPH TONDOP – METROPOLITAN POLICE COMMANDER OF NATIONAL CAPITAL DISTRICT
Third Defendant
AND
TOM KULUNGA – ACTING COMMISSIONER OF POLICE
Fourth Defendant
AND
ISAAC K. CHIEF FIRE OFFICER OF PAPUA NEW GUINEA
Fifth Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant
Waigani: Kandakasi, DCJ
2019: 13th September
2020: 29th July
DAMAGES – Assessment of –malicious prosecution – essential elements – essential element of malice or the defendants being actuated by ill-will not pleaded - default judgment – effect of – defective claim and with no proper foundation for assessment of damages – consequences – no assessment and award of damages for all claims based on malicious prosecution
DAMAGES – Personal injuries – gunshot to left thigh – 15% residual disability – comparable verdicts – damages assessed at K20,000.00.
DAMAGES – Constitutional rights breach – breach with the use of a gun to injure plaintiff – K8,000.00 awarded.
Facts
The Plaintiff was apprehended at the scene of an armed robbery, arrested, charged, tried, convicted and sentence for armed robbery. His conviction was based on circumstantial evidence. On appeal, the Supreme Court overturned his conviction and sentence and had him acquitted. That was on the basis that the learned trial Judge did not give any consideration to inconsistencies in the States evidence and the Plaintiff’s own sworn testimony. Following his acquittal, the Plaintiff issued civil proceedings claiming various heads of damages for malicious prosecution and personal injuries. On account of the defendants not filing and serving their defence within time, default judgment was entered for the Plaintiff with damages to be assessed. At the assessment of damages hearing, the Defendants argued against the award of any damages on public policy and criminal justice considerations. In the alternative, the defendants also argued for damages that are supported by proper case precedent.
Held
(a) The default judgement resolves all questions of liability in respect of the matters pleaded in the statement of claim.
(b) Any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take issue on liability.
(c) In the case of a claim for damages for breach of contract, such a judgement confirms there being a breach as alleged and leaves only the question of what damages necessarily flow from the breach to be resolved.
(d) The plaintiff has the burden to produce admissible and credible evidence of his alleged damages and if the Court is satisfied on the balance of probabilities that the damages have been incurred, awards can be made for the proven damages.
(e) A plaintiff is only entitled to lead evidence and recover such damages as may be pleaded and asked for in his statement of claim: See Coecon Limited (Receiver/Manager Appointed) v. The National Fisheries Authority of Papua New Guinea (2002) N2182; PNGBC v. Jeff Tole (2002) SC694 and William Mel v. Coleman Pakalia (2005) SC790.
(f) Additionally, the trial judge should make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity;if it is reasonably clear what the facts and cause of action are,liability should be regarded as proven but if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise, the judge should inquire further and revisit the issue of liability: See William Mel v. Coleman Pakalia (supra) and ; Jacinta Albert v. Joseph Aine, The State &Ors (2019) N7772.
(a) institution of a criminal proceeding by the defendant;
(b) termination of the criminal proceeding in the plaintiff’s favour;
(c) a lack of probable cause to support the charges; and
(d) malice: See Demba Kalo v. Cornnie Akaya and Sam Inguba, Commissioner of Police and The Independent State of Papua New Guinea (2007) N3213 and Londe Tole v. Joe Kongi (2019) N7728
Cases Cited:
Papua New Guinea Cases
Glen Otto Kapahi v. The State (2010) SC1023.
Jacinta Albert v. Joseph Aine, The State &Ors (2019) N7772.
PNGBC v. Jeff Tole (2002) SC694.
William Mel v. Coleman Pakalia (2005) SC790.
Rimbink Pato v. Umbu Pupu [1986] PNGLR 310.
Elizabeth Kimisopa v. Darryl Kamen (2016) SC1554.
Sarea Soi v. Daniel Korimbao & Ors (2018) N7081.
Wyatt Gallagher Bassett (PNG) Ltd v. Benny Diau [2002] PNGLR 477.
Moresby Claim Adjustment Partners Ltd v. Wyatt Gallagher Basset (PNG) Ltd [2003] PNGLR 140.
Demba Kalo v. Cornnie Akaya and Sam Inguba, Commissioner of Police and The Independent State of Papua New Guinea (2007) N3213.
Londe Tole v. Joe Kongi (2019) N7728.
Paul Paraka v. Eastern Highlands Provincial Government (2005) SC809.
William Yano Kapi v. Kambang Holdings Ltd (2011) N4451.
Pius Nui v. Senior Sergeant Mas Tanda (2004) N2765.
Kolta Development Ltd v. The State (2013) N5954.
Dalin More v The State and Chief Inspector Jim Onopia, Sergeant Joe Luage, Constable Dala Mentai and Constable Miamel Dage (1998) N1736l.
In the Application by Kunzi Waso [1996] PNGLR 218.
Terry Mapu v. John Kariap (2019) N7697.
Ngants Topo v. The State (2008) N3478.
Milia Yongole Kuri v. Walter Kapty & NHC, WS. No. 1775 of 2004, 20.02.08.
Kolokol v. Amburuapi (2009) N3571.
Motor Vehicles Insurance Limited v. Maki Kol (2007) SC902.
Jacinta Albert v. Joseph Aine (2019) N7772.
Tony Wemin& 227 Ors v. Robert Kalasim, Provincial Police Commander of Simbu& The State (2001) N2134.
John Tuin Solomon v. The State and Others [1994] PNGLR 265.
David Haluya v. Samson Gurel & The State (2001) N2109.
Desmond Huaimbukie v. James Baugen (2004) N2589.
Overseas Cases
Savile v. Roberts, 5 Mod 405; 12 Mod 208; 1 Ld Raymond 374.
Willers v. Joyce and Anor [2016] UKSC 43.
Mitchell v John Hein and Son Ltd [1938] NSWStRp 33; (1938) 38 SR (NSW) 466.
Legislation Cited:
Constitution Schedule 2.2.
Defamation Act (Chp 293), Section 8 (3) and s. 11 (2)
Judicial Proceedings (Interest on Debts and Damages) Act 2015
Articles cited:
John T. Ryan, Jr., Malicious Prosecution Claims Under Section 1983: Do Citizens Have Federal Recourse?, 64 Geo. Wash. L. Rev. 776, 778 (1996).
Jacques L. Schillaci, Note, Unexamined Premises: Toward Doctrinal Purity in §1983 Malicious Prosecution Doctrine, 97 Nw. U. L. Rev. 439, 443 (2002).
Note, Groundless Litigation and Malicious Prosecution Debate: A Historical Analysis, 88 Yale L.J. at 1218, 1222 (1979).
Laurie Edelstein, An Accusation Easily to be Made? Rape and Malicious Prosecution in Eighteenth Century England, 42 Am. J. Legal Hist. 351, 358 (1998).
John T. Ryan, Jr. Malicious Prosecution Claims Under Section 1983: Do Citizens Have a Federal Recourse? 64 Geo. Wash. L. Rev. at 779 (1996).
Jody M. Offutt, Expanding Attorney Liability to Third Party Adversaries for Negligence, 107 W. Va. L. Rev. 553, 560-61 (2005).
Counsel:
J. W. Palek, for the Plaintiff
R. K. Gelu, for the Fourth to Sixth Defendants
29th July, 2020
1. KANDAKASI DCJ: After succeeding on an appeal to the Supreme Court against his criminal conviction and sentence by the National Court, Glen Otto Kipahi (Kipahi) issued this proceeding claiming damages for malicious prosecution, false imprisonment, personal injuries and constitutional rights breaches. A default judgment entered on 11th May 2012, resolved the issue of liability against the defendants. The matter came before me for an assessment of Kipahi’s damages.
Mode of Trial
2. The parties agreed to all of the relevant facts and the issues for the Court to consider and come to a decision based on submissions of the parties. The relevant agreed facts are set out in the statement filed on 13th September 2019. All parties assisted with their respective submissions.
Parties Arguments
3. Kipahi, through his learned counsel, is asking for his damages to be assessed for three main components of damages adding to a total of K534,227.08 as follows:
(a) pain and suffering for personal injuries at K20,000.00;
(b) false imprisonment at K401, 250.00
(c) loss of salaries and entitlements at K112,977.08
4. The Defendants argue first that, no damages should be awarded as to do so would be contrary to public policy and would be an afront to criminal law enforcement. In the alternative, they argue for a global award as may be supported by comparable verdicts or case precedent.
Issues for Determination
5. The issues the Court must thus consider and determine are:
(1) Do public policy and criminal law enforcement considerations preclude an award of damages for Kipahi who has been freed at the end of the criminal justice process?
(2) Subject to an answer to the first question:
(a) what is the best way to assess Kipahi’s damages? and
(b) what are his damages?
Background and Facts
6. The Police had Kapahi arrested and detained in custody for an armed robbery that occurred at the Stop N Shop store at Rainbow, Gerehu, NCD, on 15thNovember1999. He was at the scene of the crime when the police officers arrived. He was subsequently, charged with armed robbery along with two other accused persons. They were all convicted and sentenced to six years imprisonment each on 28th March 2002. That came about on circumstantial evidence as there was no direct eye witness evidence connecting Kipahi to the commission of the offence. Aggrieved by that decision, Kipahi, appealed to the Supreme Court.
7. The sole ground of appeal argued by Kipahi was that the verdict of guilty was unsafe and unsatisfactory. This was based on an argument that the trial judge incorrectly found it proven that he was apprehended in a motor vehicle that had been used in the robbery in matter of minutes after the robbery took place. He argued that the State witnesses provided three different versions of the circumstances in which he was apprehended. Those inconsistencies he argued were not properly addressed by the trial judge. He further argued that, the learned trial judge did not properly address his sworn evidence that he was apprehended and shot by the police at a completely different place. He ultimately argued that, there was no other evidence linking him to the robbery and he should have been found not guilty.
8. On 06th April 2004, he was released on license. Thereafter, on 30th August 2004, his then employer, the PNG Fire Services terminated his employment. On 30th April 2010, the Supreme Court handed down its decision now reported as Glen Otto Kapahi v. The State (2010) SC1023, upholding Kipahi’s arguments following which, it decided to uphold his appeal, order a quashing and setting aside of his conviction and sentence and have him acquitted of the charge of armed robbery. In arriving at that decision, the Supreme Court found, the learned trial judge did not give any proper consideration to the inconsistencies in the State’s case. The Supreme Court also found, the learned trial judge gave no consideration to Kipahi’s own sworn testimony or evidence.
9. Kipahi’s own sworn testimony was that, he had no involvement in the robbery. He said he was a firefighter employed at Gerehu Fire Station. On the morning of the robbery, he was off-duty but was walking from his home in Gerehu to the fire station to collect some personal papers as he wanted to go into town later in the day to apply for a loan. He observed that the police were chasing some criminals so he walked to the side of the road. A policeman saw him, approached him, held him, put the barrel of a gun on his leg and fired a shot. He blacked out and didn’t regain consciousness until he was in the emergency ward at Port Moresby General Hospital. He was not discharged from hospital until six weeks later. The Supreme Court noted that, the learned trial judge rejected this evidence but gave no particular reasons for doing so. Further, the Supreme Court found, the learned trial judge did not comment on the appellant’s demeanour in the witness box or the degree of logic or common sense evident in his version of events.
10. After the Supreme Court decision, he was re-employed but as a Fireman Grade 2 in the National Fire Services. On 15th November 2011, Kipahi issued this proceeding. As alluded to earlier, following the Defendants failure to file and serve their defence, the Court ordered default judgment with damages to be assessed.
Relevant Principles on Assessment of Damages After Default Judgment
11. The relevant principles governing the assessment of damages are well settled in our jurisdiction. In my recent decision in the matter of Jacinta Albert v. Joseph Aine, The State &Ors (2019) N7772, I restated the relevant principles which govern an assessment of damages after an entry of default judgment in the following way:
“Fourthly, the law on the effect of the entry of default judgment is clear. In Coecon Limited (Receiver/Manager Appointed) v. The National Fisheries Authority of Papua New Guinea (2002) N2182, I summarised the principles that govern an assessment of damages after the entry of default judgement in the following terms:
‘A survey of the authorities on assessment of damages after entry of judgement on liability mainly in default of a defendant’s defence, clearly show the following:
8. The Supreme Court in PNGBC v. Jeff Tole (2002) SC694, per Amet CJ, Sheehan and Kandakasi J (as we then were) adopted and applied this summation of the principles. Later, the decision of the Supreme Court in William Mel v. Coleman Pakalia (2005) SC790, perLos, Jalina JJ (as they then were) and Cannings Jdid the same. Additionally, however, the Court in that case, went further by noting several decisions of the National Court in which the principles were adopted and applied. It then added the following:
“‘Turning back to the issue raised above as to the role of the trial judge after entry of default judgment, we consider the following to be the correct approach:
the trial judge should make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity;
if it is reasonably clear what the facts and cause of action are, liability should be regarded as proven;
only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability.’”
Consideration
12. Bearing these principles in mind, I turn to a consideration of Kipahi’s claim per his statement of claim to see what he has pleaded and therefore stands concluded, in terms of liability on the pleadings per the default judgment entered on 12th May 2012. Apart from the chronology of events as summarised above, the most pertinent part of Kipahi’s pleadings is paragraphs 13 – 22, which I reproduce below:
“13. By virtue of the decision, the reasons of the decision and order of the Supreme Court in quashing the conviction of the National Court and acquitting and discharging the Plaintiff has amounted to the Plaintiff being prosecuted maliciously, unlawfully wounded and unlawfully imprisoned.
PARTICULARS OF MALICE
14. The particulars of malice on the part of the Defendants are as follow:
(a) The First Defendant assumed that the Plaintiff was a person responsible for the arm robbery.
(b) The First and Second Defendants failed to assess the situation at the scene of the alleged arm robbery or at the scene of the shooting.
(c) The First and Second Defendants made every possible attempt to have the Plaintiff remains (sic) in custody.
(d) The First and Second Defendants failed to take heed of the advice given by the Defence Lawyers as to the strength of evidence sufficing (sic) to secure conviction of the Plaintiff of arm robbery.
(e) The First Defendants committed assaults and atrocities on the plaintiff for unlawful shooting and wounding of the plaintiff.
(f) The Defendants proceeding to persecute the plaintiff hence his conviction and sentencing and ultimately his termination of employment with Papua New Guinea Fire Service.
15. Any of the particulars of malice pleaded under paragraph 14 sub-paragraphs (a) to (f) or collectively effect of paragraph 14 of the Statement of Claim is sufficient to say that the arrest, charging, detention, and prosecution of the Plaintiff was with malicious intentions calculated to destroy the Plaintiff and his employment.
16. As a direct result of the malicious prosecution the Plaintiff was found guilty of arm robbery, convicted and sentence to (6) six years jail with hard labour.
17. The Plaintiff has been in Police and Correctional Services Institution custody between 15th November 1999 and 06th April, 2004, when he was released on licence.
18. In consequence of the matters aforesaid the plaintiff has been injured to his person and reputation, he was put in considerable expense and suffered inconvenience.
19. As a result of the Defendants’ malicious prosecution and false imprisonment the Plaintiff suffered injuries the particulars of which are:
(a) The Plaintiff was arrested subjecting him to public embarrassment.
(b) The detention of the Plaintiff from the date of arrest to his acquittal by the Supreme Court was unlawful from the beginning and the Plaintiff has suffered for four (4) years and five (5) months in custody.
(c) The Plaintiff shot his left anterior thigh, a lump flesh was removed.
(d) The Plaintiff suffered pain and anguish when he was unlawfully wounded.
(e) The plaintiff suffered mental and nervous breakdown while in custody.
(f) The Plaintiff, while in detention, suffered loss of exercise of basis rights, freedom of movement.
(g) When in custody the Plaintiff suffered loss of consortium of his wife and children.
(h) The plaintiff loss his employment/job with Papua New Guinea Fires Service as a consequence.
Particulars of Damages
20. As a result of the Defendants’ malicious prosecution the Plaintiff suffered damages, the particulars of which are:-
(a) The Plaintiff was unlawfully terminated by the fifth Defendant on the 30th of August, 2004, despite his knowledge of the Plaintiff’s Appeal at the Supreme Court. Consequently, the Plaintiff loss his salaries and other packages and privileges and his family have to suffer as a consequence.
Particulars of Loss of Entitlements
- Loss of Salaries - K79, 738.88
- Rental Allowance - K311.48
- Lost of Recreational Leave - K4, 126.72
- Leave fares Pom/Manus/Pom - K28, 800.00
Total = K112, 977.08
(b) The Plaintiff was unlawfully or wrongly detained and imprisoned from the 15th November, 1999 to 06th April, 2004. Consequently, he suffered great fear and distress of mind and indignity and was deprived of his liberty.
21. On the 30th April, 2010, the Supreme Court upheld the Plaintiff’s appeal and quashed the decision of the National Court and discharged him on the finding that;
(a) The forensic evidence was inconclusive as would not have been involved in the robbery of the nature of his wound as against the State evidence.
(b) The nature of the wound indicates that the weapon could not have been fired by a person shooting from the back of the vehicle.
(c) There was so much of uncertainty in the evidence that the Supreme Court found the Trial Court could not have found beyond reasonable doubt on circumstantial evidence alone.
22. The Plaintiff’s action is found on the relevant provisions of the Constitution, Claims By And Against the State Act, Wrongs (miscellaneous Provision) Act, Bail Act, Search Act, and or alternatively the liabilities of the Defendants at Common Law.”
13. Obviously, these are not the best of pleadings. But doing the best I can, it appears Kipahi is claiming the following:
(a) malicious prosecution;
(b) unlawful wounding;
(c) unlawful imprisonment;
(d) injury to his person, dignity and reputation;
(e) unnecessary inconveniences and expenses;
(f) unlawful termination from employment resulting in loss of salary and entitlements;
(g) mental distress and deprivation of liberty
14. Clearly, the foundation for Kipahi’s claim is malicious prosecution for all but for personal injuries. Accordingly, I now turn to a consideration of the claim based on malicious prosecution.
Malicious prosecution
15. There is a growing trend in PNG by lawyers bringing claims based on malicious prosecution who are failing to plead clearly and thereby establish the essential elements of such a claim and have those proved at trial for their respective clients to succeed in their respective claims. This necessitates a consideration of the development of the law on malicious prosecution with a view to enabling the practicing bar to appreciate that claims for malicious prosecution is a well-trodden path led by the common law with firm groundings in PNG.
16. I start by pointing out that, malicious prosecution is a tort at common law. By its very name, malicious prosecution asserts an abuse of process with malice. It has a very long history that has developed over the past millennium focused on refining two key factors, namely, improper institution of criminal proceedings and malice, whilst at the same time trying to balance the interests of the accused, the victim and law enforcement. Serious penalties for malicious prosecution began over a thousand years ago introduced and prompted by the Anglo Saxon courts since at least the tenth and eleventh centuries, when the price of losing a civil lawsuit was the forfeiture of one’s tongue: John T. Ryan, Jr., Malicious Prosecution Claims Under Section 1983: Do Citizens Have Federal Recourse?, 64 Geo. Wash. L. Rev. 776, 778 (1996).
17. To succeed, all that a Plaintiff had to do was to show that a prosecution was wrongful. A failed criminal prosecution was considered an abuse of process. This was the case, regardless of any detention, pre-trial punishment, or otherwise. Instigating a prosecution itself was the offense. Judges found malicious prosecution to be abhorrent, and an “aggravated form of defamation.” However, this came with the serious problem of not being able to “distinguish between the honest, well-meaning false accuser and she who brought a false charge to defame the accused.”: Jacques L. Schillaci, Note, Unexamined Premises: Toward Doctrinal Purity in §1983 Malicious Prosecution Doctrine, 97 Nw. U. L. Rev. 439, 443 (2002).
18. Overtime, this changed from the form of punishment to paying a fine or face imprisonment instead of the malicious prosecutor’s tongue to changes to the procedure: Schillaci, at 443 - 444. Next came “amercement” (“at the mercy of” or at the discretion of the Court) which came as a refinement to the system of punishment, linking fines to the harm done to the party accused in the malicious prosecution. Procedurally, liability for malicious prosecution remained tied to and as part of the original proceeding, and almost all unsuccessful accusers still were found to have committed malicious prosecution. That made it possible for the system to have the fine connected to the harm done to the accused party. But the amercement system did not compensate wronged defendants: Note, Groundless Litigation and Malicious Prosecution Debate: A Historical Analysis, 88 Yale L.J. at 1218, 1222 (1979).
19. Later, a “good cause” requirement was introduced which was a further procedural element aimed at protecting the well-meaning false accuser. Under that requirement, an accused could not recover from the accuser if the accused was indicted. This saw a decline in the findings of malicious prosecution. That came about as wealthy people began paying proxies or straw-parties to assert their accusations: Schillaci, at 444. To counter that problem, a system based on a writ of conspiracy against straw-parties and proxy parties developed and came into existence to ensure that amercement penalties could be levied against the accuser as well as his straw party bringing the suit. Although relevant only in conspiracy involving straw-party actions, this significantly introduced compensation to victims of groundless prosecutions and the requirement of malice: Groundless Litigation, at 1224-25.
20. Passage of time saw resistance to a plain tort of malicious prosecution fade. The legislature passed laws to create and broaden rights to taxation of costs against unsuccessful accusers. Yet, there was no remedy or process that allowed a wrongly accused person to recover damages for the injuries he or she suffered as a result of a wrongful prosecution. That was the case close to the end of the Seventeenth Century: Groundless Litigation, at 1226 - 1228.
21. Then came Lord Holt CJ’s decision in 1698 in the matter of Savile v. Roberts, which appear in nine reports, varying in length and content. This includes the reports at 5 Mod 405, 12 Mod 208 and 1 Ld Raymond 374. That judgment adopted a common law method for obtaining special damages that “established the guidelines that have become the modern English Rule” of common law on malicious prosecution claims. There the Lord Chief Justice said in the often-cited passage:
“Now to the principal case, if a man sue me in a proper court, yet if his suit be utterly without ground of truth, and that certainly known to himself, I may have an action of the case against him for the undue vexation and damage that he putteth me unto by his ill practice, though the suit itself be legal and I cannot complain of it.”
22. A present-day restatement of this statement of principle is found in the decision of the UK Supreme Court in the matter of Willers v. Joyce and Anor [2016] UKSC 43, per Lord Toulson with whom their Honours, Lady Hale and their Lordships, Kerr, Wilson and Clark agreed.
23. Given the possible deterrent effect on victims of crimes by this principle, Judges have exercised restraint in adopting a broad-reach malicious prosecution claim. Because of that restraint, malicious prosecution claims have been subsequently required to clear a higher hurdle or bar. Eighteenth Century England saw the judges identify “three principal motives in bringing a malicious accusation: (1) revenge; (2) forestalling legitimate prosecution; and (3) monetary gain.”: Laurie Edelstein, An Accusation Easily to be Made? Rape and Malicious Prosecution in Eighteenth Century England, 42 Am. J. Legal Hist. 351, 358 (1998). Eventually, a better and greater understanding of the motivation for malicious prosecution paved the way for the modern malicious prosecution doctrine. The modern view continues to recognise and allow for malicious prosecution as cause of action for the recovery of loss and damages brought upon a victim of such a prosecution which serves as a deterrent for groundless law suits or prosecution: John T. Ryan, Jr. Malicious Prosecution Claims Under Section 1983: Do Citizens Have a Federal Recourse? 64 Geo. Wash. L. Rev. at 779 (1996).
24. Hence, modern malicious prosecution theory and practice allows for balancing of four competing policy interests. These are namely; (1) the need to encourage honest accusers; (2) resolving litigation quickly and finally; (3) deterring groundless suits; and (4) compensating victims of groundless suits or prosecution: Groundless Litigation, at 1220. Through these developments, it has now become clearly established that there are four critical elements that must be met to succeed in a modern-day malicious prosecution claim. These are:
(1) institution of a criminal proceeding by the defendant;
(2) termination of the criminal proceeding in the plaintiff’s favour;
(3) a lack of probable cause to support the charges; and
(4) malice.
25. The fourth requirement of malice has been defined as a requirement for a plaintiff in a malicious prosecution case to plead and then prove by appropriate evidence the defendant’s subjective state of mind at the relevant time of the alleged malicious prosecution. This has to do with the defendant’s intention or purpose behind his or her initiation of the relevant prosecution. That intention or purpose must be for reasons other than bringing a criminal offender to justice. Thus, pleading and establishing this element is a critical component for a claim in malicious prosecution: Ryan, at 779.
26. The law and practice on malicious prosecution as developed and applicable in England has been adopted and applied in many jurisdictions in the Commonwealth and other jurisdictions, even America. In America, after the American Revolutionary War, several American states adopted (which is representative of the rest of the common law world) the evolved version of the English common law on malicious prosecution: Schillaci, at 445. The American system places emphasis on the societies interest in encouraging honest victims to bring their accusations into the legal system for its determination according to law the guilt or innocence of the accused through investigation, indictment, and trial: Jody M. Offutt, Expanding Attorney Liability to Third Party Adversaries for Negligence, 107 W. Va. L. Rev. 553, 560-61 (2005). In other words, under the American legal system, public policy requires, encourages and gives the freedom to the people to resort to the legal process through the courts to redress a wrong and the law is there to protect them when they commence a civil or criminal action provided the action is taken in good faith and on reasonable grounds. Hence, the system as developed in England and adopted and applied under the American legal system and elsewhere places its proper balance at allowing recovery only when the accuser, be it a police officer or a private citizen, is proven to have been actuated by ill-will or “bad faith” and only for the actual abuse of the process.
27. These principles have been adopted and have become part of PNG law under Constitution Schedule 2.2. Section 8 (3) and s. 11 (2) of the Defamation Act (Chp.293) expressly adopts in the context of defamation proceedings the notion of “actuated by ill-will” in the Acts definition of the phrase “good faith”. Section 11 (2) for example states:
“For the purposes of this section, a publication is made in good faith if—
(a) the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; and
(b) if the manner and extent of the publication do not exceed what is reasonably sufficient for the occasion; and
(c) if the person by whom it is made—
(i) is not actuated by ill-will to the person defamed, or by any other improper motive; and
(ii) does not believe the defamatory matter to be untrue.”
(Emphasis supplied)
28. Given the common law as adopted for example in defamation cases, the Courts in PNG are well versed or used to finding either for or against a publication in “good faith” or its opposite – “actuated by ill-will” on numerous occasions: See for example Rimbink Pato v. Umbu Pupu [1986] PNGLR 310, per Woods, Los, Wilson JJ (as they then were); Elizabeth Kimisopa v. Darryl Kamen (2016) SC1554, per Manuhu, Hartshorn and Makail JJ. I also have had occasion to make such findings in the cases of Sarea Soi v. Daniel Korimbao & Ors (2018) N7081 and Wyatt Gallagher Bassett (PNG) Ltd v. Benny Diau [2002] PNGLR 477, which survived an appeal per judgment now reported as Moresby Claim Adjustment Partners Ltd v. Wyatt Gallagher Basset (PNG) Ltd [2003] PNGLR 140.
29. Turning specifically to malicious prosecution cases, I note, earlier claims of malicious prosecution in PNG have not brought out clearly the essential elements for such a claim. Clarity on the essential elements began to develop commencing with the decision in Demba Kalo v. Cornnie Akaya and Sam Inguba, Commissioner of Police and The Independent State of Papua New Guinea (2007) N3213, per Davani J, who stated the essential elements in the following terms:
“The elements of the tort of malicious prosecution were held in the case of Commonwealth Life Assurance Society Ltd v Brain (1934 – [1935] HCA 30; 1935) 53 CLR 343 at 351. There the Court held the elements to be;
‘1. The institution, adoption or continuation of criminal proceedings by a defendant or defendants against the plaintiff.
30. In my decision in the Sarea Soi case (supra) at paragraph 55, I noted this articulation of the essential elements, which I found was useful for the purposes of working out the essential elements for the tort of malicious publication of defamatory material. I noted as follows:
“(1) ‘malice’ is defined to mean a desire to cause harm or difficulty to others, [by] ill-will or harmful intent;
(2) malice may be inferred where the defendant has a purpose other than bringing an offender to justice;
(3) the defendant did not believe that the plaintiff was probably guilty of the offence;
(4) 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.”
31. Later in Londe Tole v. Joe Kongi (2019) N7728, Cannings J, separately restated the essential elements for a malicious prosecution cases as follows at para 3 of his Honour’s judgment:
“3. The elements of the tort of malicious prosecution are that:
(a) the defendant is responsible for institution of proceedings against the plaintiff;
(b) the defendant has instituted the proceedings without reasonable and probable cause;
(c) the defendant was motivated by malice or some other improper purpose; and
(d) the criminal proceedings have been resolved in favour of the plaintiff.”
32. The foregoing discussions of the law, make it clear that the element of malice is a critical element. Malice has to do with and concerns the accuser’s motivation for bringing the failed criminal proceedings. Most of the time it is difficult to know what is in one’s mind, except only to infer from one’s actions or inactions. Motives or intentions of an accuser are matters that are personal and are best known to him or herself. Given that, it would be most difficult for the victim of any malicious prosecution to succeed in a claim of vicarious liability against an accuser’s employer or principal, because the plaintiff will need to plead with sufficient particulars mind set and motivation of two different persons. To succeed in a claim based on malicious prosecution against accuser and his employer, the victim plaintiff has a duty to clearly and succinctly plead with particulars the bases for also claiming malice against his or her accuser’s employer or principal.
Law on pleadings
33. It is trite law in PNG that pleadings form the necessary foundation for a plaintiff’s claim. It is the pleadings that bring out the issues between the parties and it is the pleadings that lay the necessary foundation for the calling of evidence and award of damages. Where there is any lack of pleading, no evidence can be called and most importantly there can be no award of damages. In a case where, default judgment has been entered as in the present case, the entry of default judgment covers what is pleaded. Any lack in the pleadings cannot be supplied or ignored and awards made. The Supreme Court made this very clear in PNGBC v. Jeff Tole (supra).
34. In that case, Mr. Tole secured a default judgment in his claim against the PNGBC. The matter then proceeded to a trial for an assessment of Mr. Tole’s damages. That occurred ex parte the PNGBC, which had notice of the trial and failed to turn up at the trial and participate. In his assessment of Mr. Tole’s damages, the learned trial judge made certain awards of damages that were not specifically pleaded. That amounted to a departure from what was pleaded. With the agreement of his Honour Sheehan J, I took the view that:
“In fairness PNGBC should have been given notice of those new claims and the opportunity to either admit or deny them. Without such notice and opportunity being accorded to PNGBC, no evidence could be led and damages awarded on matters not pleaded. The default judgement only resolved the liability against PNGBC for the matters pleaded and for the relief prayed for in the statement of claim. It follows therefore that the assessment of damages could only be made for the relief actually pleaded.”
35. On the effect of PNGBC not turning up and participating at the trial on assessment of damages, I was of the view that:
“That failure did not however, amount to an amendment to Mr. Tole’s pleadings to include matters that were not properly pleaded in the original pleadings for which default judgement was entered. The onus remained with Mr. Tole to properly plead and then prove what was in fact pleaded by way of damages. The moment he stepped outside the pleadings he went outside what was resolved by the default judgement. The Court in my view was therefore, left with only one of two options to take. The first was to proceed to assess damages and grant such relief as was properly pleaded for which default judgement was entered. The second was to allow an amendment to the pleadings and then adjourn the hearing to allow Mr. Tole to notify PNGBC of the additional claims and give PNGBC the opportunity either to admit or deny liability for that.”
36. I further observed:
“A party’s failure to turn up at a hearing and failing to raise objections to matters not pleaded are not one and the same thing after the entry of default judgement. A defendant against whom default judgement has been entered is entitled to do nothing, if for example, he does not object to the matters pleaded and more particularly the relief prayed for being granted against him. Such a defendant is entitled to expect judgement strictly for the matters pleaded and nothing else. If a plaintiff seeks to step out of the pleadings, then he is obliged to amend the pleadings and then allow the normal process of pleadings to take place before there can even be a hearing and judgement on matters not in the original pleadings.”
37. Apply these principles to Mr. Tole’s case, I held:
“In this case, Mr. Tole was allowed to lead evidence ... [on] matters not properly pleaded and was eventually granted relief not in the original pleadings. Mr. Tole did not even ask for an amendment to his statement of claim to include the matters that were not pleaded in his statement of claim. When this happened, both the plaintiff and the learned trial judge with respect went outside what the default judgement had resolved. It also, meant in effect that Mr. Tole was allowed to get to a relief without first filing a claim for it in terms of including it in his writ of summons and the statement of claim endorsed thereto. That in turn meant that, the normal course under the Rules were not allowed to take its full course in terms of PNBGC being served and opportunity given to it to file its defence, a reply to its defence, discoveries and interrogatories, before trial and damages.”
38. In the end the Court decided to uphold the appeal, quash the offending award and have that set aside.
39. As noted, the decision in Jeff Tole, has been adopted and applied in many subsequent Supreme and National Court judgments. The decision of the Supreme Court in William Mel v. Coleman Pakalia (supra) and Paul Paraka v. Eastern Highlands Provincial Government (2005) SC809, per Sakora, Sevua and Lenalia JJ (as they then were) are examples of cases on point.
40. The foregoing discussion of the law on malicious prosecution sufficiently brings out what must be pleaded on the essential element of malice to succeed in a malicious prosecution claim. On the element of acting without probable cause the following passage from Jordan CJ in Mitchell v John Hein and Son Ltd [1938] NSWStRp 33; (1938) 38 SR (NSW) 466as quoted by her Honour Davani J at paragraph 39 of her decision in Demba Kalo (supra) is relevant and on point:
“In an action for malicious prosecution the burden of proof is on the plaintiff to prove (inter alia), that the defendant in instituting or maintaining the prosecution acted without reasonable or probable cause and also acted maliciously. In order that one person may have reasonable and probable cause for prosecuting another for an offence, it is necessary that the following conditions should exist: (1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty.
In order that the plaintiff may succeed on the issue of reasonable and probable cause, it is essential that he should establish that one or more of these conditions did not exist. This he may do by proving, if he can, that the defendant prosecutor did not believe him to be guilty, or that the belief in his guilt was based on insufficient grounds. To establish the first of these matters, it is essential that evidence should be given of some fact or facts which, either inherently or coupled with other matters proved in evidence, would enable the inference that the defendant did not believe in the plaintiff’s guilt... Merely to prove that the defendant had before him information which might or might not have lead a reasonable man to form an opinion that the plaintiff was guilty supplies no evidence that the defendant did not believe him to be guilty. If this ground is relied on, the plaintiff must give some evidence from which an inference may be drawn as to what the defendant’s belief actually was. It is not sufficient to give evidence from which a guess may be made as to what it was. Nor is it sufficient merely to supply evidence of reasons for non-belief; and if such evidence is relied on there must also be evidence that these reasons were in fact operative... It may, for example, be supplied by evidence that the defendant had before him facts pointing to the plaintiff’s innocence so overwhelming that no reasonable man could have believed in his guilt... But the necessary evidence is not supplied by proof that the defendant was aware of facts which might or might not have satisfied him of the plaintiff’s guilt, or that he had before him information, some of which pointed to guilt and some to innocence.
If the plaintiff proposes to establish that the defendant had not sufficient grounds for believing him to be guilty, the burden is on the plaintiff to give evidence of what information the defendant in fact had... If he contends that the defendant did not believe some of the information which he had, he must supply evidence supporting an inference as to what the defendant’s belief actually was with respect to the accuracy of the information in question, not a guess as to what it was... It is only when he has supplied some evidence of the nature of the whole of the information that the defendant had that he can invite an inference that it was insufficient... If the plaintiff does place before the court evidence of the nature of the whole of the information which the defendant had, it is for the judge... to determine whether it was reasonable for the defendant to believe in the accuracy of the information and also to determine whether it was reasonable for him to act on it, i.e., whether it was sufficient to justify a man of ordinary prudence and caution in believing that the plaintiff was probably guilty.”
Present Case
41. As can be seen from the foregoing discussions, the law and practice on malicious prosecution and pleadings are now well crystallised. Allowing myself to be guided by these principles of law, I turn to a consideration of Kipahi’s pleadings in the present case. The key part of Kipahi’s pleadings is paragraph 13 and more so the particulars pleaded under paragraph 14. A careful consideration of these pleadings and the other relevant paragraphs as reproduced at paragraph 12 above, does not reveal any pleading of the essential element of malice or ill-will on the part of the First and Second Defendants and the other Defendants. Similarly, there is no pleading that, the Defendants had no probable cause to arrest and charge Kipahi. The need to plead these essential elements was critical, especially when the Kipahi, was formally charged and brought before the Courts (the committal and trial courts) of competent jurisdiction which found him guilty as charged and had him sentenced. His acquittal following his successful appeal came about because the learned trial judge did not give any consideration to inconsistencies in the State’s case and the learned trial judge’s failure to consider Kipahi’s sworn testimony.
42. It was not an issue and it was appropriately, not part of the Supreme Court’s decision on the issue and or element of malicious prosecution on the part of the first two defendants in this proceeding. Similarly, the Supreme Court did not have and therefore correctly did not deal with the issue of whether, these defendants had or did not have any probable cause to apprehend and deal with Kipahi in the way they did. Hence, these are matters that called for careful and sufficient pleadings with particulars in this proceeding with the first set against the first two defendants and the second set of malice and acting without probable cause as against each of the other defendants including the State.
43. To succeed Kipahi was under an obligation to plead with particulars the essential element of malice or ill-will or a motive other than an honest enforcement of criminal law. Also, he had the obligation to plead there was no reasonable and probable cause for each of the defendants to have Kipahi prosecuted. For that, Kipahi had to plead: (1) the prosecutors, namely all the defendants did not believe that the accused (Kipahi) was probably guilty of the offence; (2) there was no real information and or evidence in the possession of the prosecutors pointing to Kipahi’s guilt; (3) the information or evidence whether it consists of things observed by the prosecutors, or things told to them by others, were truthful; (4) the belief of the prosecutors were based upon reasonable grounds; and (5) the information possessed by the prosecutors and reasonably believed by them to be true, were such as to justify a man of ordinary prudence and caution to believe that Kipahi was probably not guilty. Unfortunately, the pleadings are completely lacking and in wanting.
Lack of evidence and submission
44. In addition to the lack of any pleading of the essential elements of malicious prosecution as noted above, Kipahi has not produced any evidence of any malicious intent or motivation of the First and Second Defendants and the other Defendants for having him arrested, charged and convicted. In other words, Kipahi has failed to produce any evidence notwithstanding the lack of pleadings of the First and Second Defendants and the other defendants being actuated by an identified ill-will or malice and not for probable cause.
45. The uncontested facts are that, there was a robbery and the First and Second Defendants upon arrival at the scene, found Kipahi and proceeded to have him apprehended, arrested and charged as one involved in the armed robbery. How was that not probable cause? The pleadings, in paragraph 14 (b) and (d) in Kipahi’s statement of claim as to the First and Second Defendants failure to assess the situation at the scene before arresting him and later failing to heed his lawyer’s legal advice could arguably be an answer to the question. But that is not Kipahi’s pleadings nor is it his submissions. The First and Second Defendant’s duty as police officers upon coming to a scene of a robbery being committed, were entitled to apprehend any person at the scene that appeared to them to have been involved in the robbery. The Court as the ultimately trier of the facts had to decide the question of Kipahi’s guilt or innocence. The committal court was satisfied that there was basis to have him charged and decided to have him committed to stand trial in the National Court. At the National Court, the Court found Kipahi guilty as charged and sentenced him of the offence of armed robbery. The conviction was however overturned strictly on the basis of the learned trial judge not considering the inconsistencies in the prosecution’s evidence and Kipahi’s own sworn testimony. The reasons forming the foundation for the Supreme Court’s decision did not consider and determine the question of whether or not, there was evidence supporting the charge, conviction and sentence.
46. Were the committal and National Courts also actuated by malice? Was there a joint enterprise or conspiracy between the First and Second Defendants, the other defendants and the courts to have Kipahi arrested, charged, convicted and sentence in the way he was? If yes, what was that ill-will or motivation for each of the defendants and the courts? These matters needed proper and specific pleading by Kipahi, which he failed to do.
47. Consistent with Jeff Tole, I am of the view that the default judgment did not have the ability to correct the defects or deficiencies in the pleadings identified in the present case. The defects and deficiencies, which are serious and very critical for the claim based on malicious prosecution, remain. This defect is serious and critical because of the need in a claim like this to balance law enforcement and the need to ensure the law enforcement is not actuated by ill-will or motivation other than genuine law enforcement. The defect has the effect of no firm or proper foundation being laid for this Court to proceed to a proper and correct assessment of any damages based on the claim of malicious prosecution.
48. In Demba Kalo, her Honour, Davani J found there was probable cause for the plaintiff’s arrest and he failed to “show or establish that the first defendants conduct was actuated solely or predominantly by a wrong or indirect motive or malice. These formed the basis for a dismissal of the plaintiff’s claim of malicious prosecution. In William Yano Kapi v. Kambang Holdings Ltd (2011) N4451, Cannings J dismissed the plaintiffs claim because he failed to make out a case of malice against the Defendant. The same was the outcome in Pius Nui v. Senior Sergeant Mas Tanda (2004) N2765, per Cannings J on account of the plaintiff failing to establish the element of malice in addition to the other elements for a claim based on an allegation of malicious prosecution.
49. Further, if Kipahi made out a case of malicious prosecution on the part of the First and Second Defendants, that would form the foundation for a claim against those defendants’ personally and render the claim against the other defendants, in particular the State unsustainable. This is because, malice goes to the state of mind and that which drives a malicious prosecutor which is something personal to him or her, unless specifically instructed to so act by the prosecutor’s employer or principal. The State or any employer can only be liable for the tortious actions of its employees who are lawfully carrying out their duties whilst pursuing and furthering the interest of the State. It has been already held that, the State cannot be liable for the unlawful actions or torts committed outside the scope of its employees’ employment. Or put in another way, it is already well settled law that the State cannot be liable for the actions of its employees who commit a tort whilst on a frolic and detour of their own.
50. In Kolta Development Ltd v. The State (2013) N5954, I discussed the law on vicarious liability in the context of an employee going out on a frolic and detour of his own in the following terms at paragraph 13:
“The law on the principle of vicarious liability and in particular the aspect on an employee going out on a frolic and detour of his or her own and causing harm or damage is clear.Earlier on it seemed that, the courts were prepared to overlook the long established common law principle that, an employer can only be liable for the actions of his employees if it can be shown by appropriate evidence that, the employee was acting within the scope of his employment, advancing the employer’s cause, business or interest and not out on a frolic and detour of his own. The decision of Injia J., (as he then was) in Dalin More v The State and Chief Inspector Jim Onopia, Sergeant Joe Luage, Constable Dala Mentai and Constable Miamel Dage (1998) N1736l, in my view correctly stated and applied the long-established principle at common as adopted by statute into our country.”
“There His Honour dismissed a claim against the State for damages on account of two police men who raped a woman after tying up her boyfriend. In arriving at his decision His Honour reasoned amongst others:
‘Rape is a criminal offence under s. 347 of the Criminal Code... Under the ordinary criminal law, the individual policemen concerned would become liable to criminal prosecution. Their policemen title and their police uniforms is no shield against criminal prosecution for criminal offences committed in the course of performing their duties. However, the legal entity of the State, their employer, or principal, cannot be held liable for the criminal offence of rape: Caind v. Doyle (1946) 72 CLR 09. The State may however be held vicariously liable in damages for civil wrongs such as torts committed by its employees or agents, such as policemen, committed in the course of performing their duties provided the wrongful action was committed whilst performing or purporting to perform such functions “as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government”... If a policeman departs from his lawful instructions and goes on a frolic of his own and commits a crime, then the State cannot be held liable for the crime for the reason that it would never form part of the State’s lawful instructions to the policeman concerned to commit a crime in the course of performing their duties. The individual policemen concerned, if identified, would become criminally liable for the crime. If they are not identified, then that is the end of the matter insofar as criminal liability is concerned.’”
52. I also noted that, earlier in In the Application by Kunzi Waso [1996] PNGLR 218, Jalina J (as he then was) took a similar position for the unlawful actions of police officers: See also Terry Mapu v. John Kariap (2019) N7697, per Tamate J at para. 34.
53. For these reasons, I decline to assess any damages for Kipahi on his claim based on malicious prosecution. The heads of damages I thus decline to assess any damages for are:
(a) malicious prosecution;
(b) unlawful imprisonment;
(c) dignity and reputation;
(d) unnecessary inconveniences and expenses;
(e) unlawful termination from employment resulting in loss of salary and entitlements;
(f) mental distress and deprivation of liberty;
(g) breach of constitutional rights associated to malicious prosecution.
Personal injuries
54. The only claim that survives is Kipahi’s claim for damages for personal injuries. Paragraph 19 (c) and (d) of Kipahi’s statement of claim, reproduced at paragraph 12 above sets out the injuries he suffered as a result of being shot at on his left leg. In the submissions, this is elaborated without any objection by the Defendants. That elaboration speaks of Kipahi being brought to the Port Moresby General Hospital, where he was admitted and treated for the gunshot injury. Medical evidence establishes a 5cm x 15 cm scar on his anterior left lower thigh. The evidence goes on to suggest that, from the injuries Kipahi has been left with loss of efficient use of his left quadricep muscles which restricts extending his left knee joint, which represents a 15% loss of the efficient use of the left thigh.
55. Kipahi’s learned counsel submits that his client should be awarded K20,000.00 in general damages for the injuries and disabilities he has been left with. In support of that submission counsel cited the decisions and awards in:
(a) Ngants Topo v. The State (2008) N3478, where Makail J awarded K30,000.00 for a Plaintiff who suffered a 65% loss of function of a leg;
(b) Milia Yongole Kuri v. Walter Kapty & NHC, WS. No. 1775 of 2004, 20.02.08, where Cannings J awarded K50, 000.00 general damages to a woman who suffered a 45% loss of function of a leg; and
(c.) Kolokol v. Amburuapi (2009) N3571, where Cannings awarded K25, 000.00 to a young man in his 20s who suffered a gunshot injury to left leg by rogue policemen.
56. In this case, the Kipahi’s injuries may not be quite as severe as in cases cited. But I do note the fact that he was shot at using a gun, he was hospitalised and has been left with a 15% residue disability which is an ongoing discomfort and restriction on the full use and enjoyment of the affected part of the body. The comparable verdicts referred to Kipahi’s counsel are cases more than 10 years ago. I also note that, there is no serious challenge against the submission for an award in the sum of K20,000.00. Further, I remind myself of the principle that the Courts take into account such factors as increase in inflation since the comparable awards and change in living circumstances of our people and they progressively increase awards to reflect such changes: See Motor Vehicles Insurance Limited v. Maki Kol (2007) SC902, per Kandakasi and Lenalia JJ (as we then were) and David J and Jacinta Albert v. Joseph Aine (2019) N7772. Having regard to these factors, I find the submission for an award of K20,000.00 reasonable. Accordingly, I award K20,000.00 in damages for Kipahi’s personal injuries.
Constitutional breach
57. Injuring the Kipahi with a gun constituted a violation of his constitutional right. I will thus allow for an assessment of damages for this breach. The Courts have award damages for such breach in the range of K2,000.00 to K4,000.00 depending on the severity of the breach. A case on point is the decision in Tony Wemin & 227 Ors v. Robert Kalasim, Provincial Police Commander of Simbu & The State (2001) N2134, per Kirriwom J. There, the Court had regard to the earlier judgments in John Tuin Solomon v. The State and Others [1994] PNGLR 265, per Woods J and several others. Other cases like the one in David Haluya v. Samson Gurel & The State N2109, per Sakora J (as he then was) represent higher awards of up to K6,000.00. These awards were made on the basis amongst others, that the defendants made submissions for settlement in those terms.
58. Having regard to these kinds of awards, I awarded K2,000.00 for each of the plaintiffs in Desmond Huaimbukie v James Baugen (2004) N2589. There, the plaintiffs were part of a group of villagers that were rounded up, assaulted by kicks and punches. In the present case, Kipahi was shot at by a gun. In my view, that constitutes a serious breach of his constitutional rights. There is no evidence of him posing an immediate or other threat against the police officers. Also, there is no evidence of him trying to run away or such other action that warranted the use of a firearm to have him shot at. In these circumstances, I consider an award of K8,000.00 in damages as reasonable compensation of this breach. Accordingly, I make that award.
Total award
59. Having declined to assess and award any damages for all claims based on malicious prosecution, the only awards I make in this claim are K20,000.00 for the personal injuries inflicted upon Kipahi by the first two defendants and K8,000.00 for breach of Kipahi’s constitutional rights by the use of a gun. I order these damages be assessed and made against the first two defendants and the State as the employer of the first two defendants. The reason for this is simple. In the absence of any pleadings and evidence of the first two defendants acting maliciously and out on a frolic and detour of their own, they were no doubt in the course of their duty as police officers coming to a scene of a crime that had just occurred and they acted in the way they did. Given that, the State is vicariously liable even though the pleadings do not breach that out clearly.
Interest on damages
60. Consistent with the law on award of interest as I discussed in Jacinta Albert at paragraphs 58 -63, I order interest at 8% to be calculated and added onto the judgment sum of K28,000.00 from the date of the issue of the writ.
Costs
61. Costs usually follow the event. In this case, the Plaintiff has succeeded, albeit partly. The defendants have not made any submission
as to why costs should not be ordered against them. In these circumstances, I order costs in favour of the Plaintiff to be taxed,
if not agreed.
________________________________________________________________
John W Palek Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyer for the Fourth to the Sixth Defendants
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