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Sine v Kewe [2021] PGNC 107; N8858 (4 February 2021)

N8858

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO. 172 OF 2019

BETWEEN:
JOSEPH SINE
Plaintiff

AND:
KUNI KEWE
First Defendant

NICKY MELAU
Second Defendant

AND:
CONSTABLE JOHN BERNARD
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Lae: Dowa AJ
2020: 18^th November
2021: 19^th February

DAMAGES – assessment of damages following entry of default judgment – plaintiff’s claim based on unlawful detention by police – plaintiff arrested by third defendant and locked up in police cell without laying charges and released after five days – plaintiff claims damages under different heads of damages – issues are what is the effect of default judgment, and what damages is the Plaintiff entitled to – plaintiff still has onus to prove his claim even if default judgment is entered – plaintiff is awarded General damages, and damages for breach of his Constitutional rights with interest and costs.

Cases Cited:
Papua New Guinea Cases

Albert v Aine (2019) N7772
Alfred v Kapi (2020) N8467
Coecon Ltd (Receiver Manager) v The National Fisheries Authority of PNG (2002) N2182
Enaia Lanyat v State (1996) N1481
John Kalaut & State (1997) N1634
Jonathan Mangope Paraia v The State (1995) N1343
Kinsim Business Group Inc-v Joseph Homwafi,
Kombea v Peke (1994) PNGLR572
Obed Lalip v Fred Sekiot and The State (1996) N1457
Peter Wanis v Fred Sikiot and The State (1995) N1350
PNGBC v Jeff Tole (2002) SC694
Samot v Yame (2020) N8266
William Mel v. Coleman Pakalia (2005) SC790
Yooken Paklin v The State (2001) N2212

Overseas Cases

Livingstone-v-Rawyards Coal Co. (1908)5 App Cas 25(HL)

Counsel:

K. Keindip, for the Plaintiff
B. Tomake, for the Second, Third & Fourth Defendants

JUDGMENT

19^th February, 2021

1. DOWA J: This is a judgment on an assessment of damages of the Plaintiffs claim. Default judgment was entered for the Plaintiff on 24^th July 2020.
   

Facts

2. The Plaintiff alleges, on 29^th August 2013, he was arrested by the Third Defendant, a policeman in Bulolo town of Morobe Province, and placed in the police cells for 5 days. It is alleged the arrest and detention was for no lawful reason. The Defendants conduct therefore amounted to a breach of the Plaintiffs rights under section 42(1)(b), (c), (d) & (e), section 42 (2) and (3) of the Constitution.
   
3. The Plaintiff filed the current proceedings to recover damages. Although all Defendants were served, they defaulted in filing their Defence which resulted in judgment by Default.
   
4. Trial on assessment of damages was conducted on 6^th November 2020, with submissions on evidence on 18^th November 2020. I reserved my ruling which I now deliver.
   

Issues

5. The issues for consideration are:
   
   1. What is the effect of default judgment, and
   2. What damages is the Plaintiff entitled to.
      
6. The law on the effect of default judgment is settled in this jurisdiction. A trial Judge must satisfy himself with the principles summarised in the cases; Coecon Ltd (Receiver Manager) v The National Fisheries Authority of PNG (2002) N2182, PNGBC v Jeff Tole (2002) SC694, William Mel v. Coleman Pakalia (2005) SC790, and Albert v Aine (2019) N7772.
   
7. In Albert v Aine, Kandakasi DCJ at paragraphs 7 & 8 of his Judgment said:

“7. 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:

1. The judgement resolves all questions of liability in respect of the matters pleaded in the statement of claim.
2. Any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability.
3. In the case of a claim for damages for breach of contract as in this case, such a judgement confirms there being a breach as alleged and leaves only the question of what damages necessarily flow from the breach.
4. The plaintiff in such a case 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.
5. A plaintiff in such a case is only entitled to lead evidence and recover such damages as may be pleaded and asked for in his statement of claim.”
   
8. The Supreme Court in PNGBC v. Jeff Tole (2002) SC694 adopted and applied this summation of the principles. Later, the decision of the Supreme Court in William Mel v. Coleman Pakalia (2005) SC790, did 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.”

9. I adopt and apply the above principles to ensure that default judgment is in order. In the present case, the pleadings are in order. The process of securing default judgment has been duly followed and liability has been properly resolved by default judgment. I can proceed with the assessment of damages.
   

Evidence

10. The Plaintiff relies on the following affidavit evidence:
    
    1. Affidavit of Joseph Sine sworn and filed 9/09/2020.
    2. Affidavit of Gilbert Maim sworn and filed 5/11/2020
       
11. Briefly, the Plaintiff’s evidence is that he was arrested by Constable John Bernard, a policeman based in Bulolo, for no reason at all. The evidence shows, the First Defendant lodged a complaint with the Police Station at Bulolo to arrest one Willie Sine. In the execution of a Warrant of Arrest, the Third Defendant mistakenly arrested the Plaintiff instead of Willie Sine. The Plaintiff protested that he was not the person named in the Warrant of Arrest, but the police personnel refused to release him, and was detained at the police cells for five (5) days, (although some aspects of this evidence is disputed by the arresting officer). The Plaintiff was not charged with an offence and was released by the District Court on 2^nd September 2018.
    
12. The Defendants rely on the following affidavit evidence:
    
    1. Affidavit of Constable John Bernard filed 04/09/2020.
    2. Affidavit of Sakarias Tapi filed 04/09/2020.
       
13. The Defendants evidence is that the name on the Warrant of Arrest was one “Willie Sine” which appears to be a mistake. However, the Defendants evidence did not conclusively state that the person bearing the name “Willie Sine” is one and the same person as “Joseph Sine” Since the parties have agreed to forgo any cross-examination, I accept that Willie Sine is not one and the same person as Joseph Sine, the Plaintiff in the proceedings. Secondly, there is no evidence that the Plaintiff is making a fraudulent claim. Finally, since the Defendants have not filed a Defence, any evidence and issues concerning liability is now resolved by the default judgment.
    

I will now proceed to assessing the amounts of damages.

Damages

14. In respect of damages, the law is clear. Whilst the issue of liability is settled, the Plaintiff is still required to prove its damages with credible evidence. Ref: Yooken Paklin v The State (2001) N2212, Peter Wanis v Fred Sikiot and The State (1995) N1350), Enaia Lanyat v State (1996) N1481; Obed Lalip v Fred Sekiot and The State (1996) N1457; Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.
    
15. In Samot v Yame (Supra), His Honour, David J referring to legal principles to be applied in assessing damages said this at paragraph 46 of his judgment:

“ The Supreme Court in William Mel v Coleman Pakalia (2005) SC790 and the National Court decision of Cannings, J in Steven Naki v AGC (Pacific) Ltd (2006) N5015 summarise or identify a number of legal principles that are applicable in assessing damages where liability is established either following a trial or after the entry of default judgment and these are:

• The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)
  
• Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)
  
• The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)
  
• The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)
  
• If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)
  
• Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)
  
• The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)
  
• The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)
  
• The person who has been wronged has a duty to mitigate their losses; though it is the defendant who has the onus of proving failure to mitigate (Dia Kopio v Employment Authority of Enga and Others (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182, National Court, Kandakasi J.)”

16. I will adopt and apply these principles in the present case when considering each head of damages sought by the plaintiff. In the statement of claim the Plaintiff was seeking various heads of damages including damages for loss of income.
    
17. Lawyers for the parties correctly stated the principle governing the law of damages. Any damages in monetary terms be such amounts which put the injured party in the same position as he was before the injury or loss suffered.
    
18. In Livingstone-v-Rawyards Coal Co. (1908) 5 App. Cas25 (HL), Lord Blackburn said:
    

“where injury is to be compensated by damages, in settling the sum of money to be given for damages, you should as nearly as possible get at that sum of money which will put the injured party or who has suffered in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation”

19. This principle of law is further qualified in the case of Kinsim Business Group Inc-v Joseph Homwafi, John Kalaut & State (1997) N1634. At page 6 of his Judgment, His Honour Bidar AJ said that the principle referred to as Restitutio In Integrum is not absolute. It is qualified to the extent that the injured party gets damages which naturally arise from the wrong done, not those which are too remote; and secondly the injured party has a duty to mitigate his loss.

The Plaintiff has the burden of proving his claim, with appropriate evidence.

General Damages

20. The first head of damages is general damages. Mr. Keindip, of counsel for the Plaintiff proposed a lump sum of K10,000.00 in his extract of submission. He referred to the decisions in Kombea v Peke (1994) PNGLR572 and Alfred v Kapi (2020) PGNC, N8467. I note Alfred v Kapi is more serious than the present case. Mr. Tomake, Counsel for the State submits that the appropriate amount would be K 4,000.00. Mr. Tomake relies on comparable verdicts in the cases; David Kofowei v Augustine Siviri (1983) PNGLR 449, Molomb v State (2005) PGNC109, and Kol v The State ( 2006) PGNC 217.
    
21. General damages is for pain, suffering and loss of amenities. In Kerr -v- Motor Vehicles Insurance (PNG) Trust (1979) PNGLR251, the Supreme in providing a guide on assessment of general damages, held that:

“In assessing general damages for personal injuries under the heading, pain and suffering , loss of amenities etc., the assessment should be made having regard to the prevailing condition of the plaintiff at the time of the injury, and the general standards prevailing in the community.”

22. So, what is the reasonable and fair compensation. In the present case the plaintiff was not assaulted or ill-treated by police personnel. He was not charged with any offence. However, he was picked up by police and detained for a period of five days. He suffered embarrassment, anxiety and inconvenience. There is evidence that his family suffered anxiety and inconvenience. It was a deliberate act by the defendants on an innocent man. The awards referred above were made several years back. His case is identical to the case of Kombea v Peke, where the Plaintiff who was unlawfully detained for four days was awarded K4,000.00. Again, that case was decided 26 years ago. Allowing for inflation, I will make an award of K 8,000.00.

Breach of Constitutional Rights

23. The Plaintiff is seeking damages for violation of his constitutional rights in the following:
    
    1. Right to full protection of the law – section 37
    2. Freedom from inhuman treatment – section 36
    100. Liberty of a person - section 42
    4. right to treated with human dignity. – section 37 (17)
       
24. Under this head of damages, counsel for the Plaintiff submitted a global sum of K 14,000.00. Mr Keindip referred to the decisions in Solmein v Lim (2020) N8449 and Alfred v Kapi (2020) N8467. There is no explanation how this figure is arrived at. The pleadings are ambiguous too. The cardinal law underpinning civil litigation is that pleadings drive the evidence. In the present case, even the evidence falls short.
    
25. Counsel for Defendants submitted that any award for alleged breach of constitutional rights be restricted to the unlawful detention, that is a breach under section 42 of the Constitution. The defence counsel relies on a string of cases decided in this jurisdiction that suggest that a sum of K 1,000.00 be awarded for every day spent in unlawful detention. The defence counsel therefore submitted a sum of K 5,000.00 be awarded for the five days.
    
26. From the pleadings and evidence provided the constitutional breaches for right to freedom from inhuman treatment and protection of the law are not established.
    
27. As for violations against his freedom and privacy, I am of the view that there was a breach. The plaintiff was taken away from his place of privacy, comfort and security. His freedom was taken away for five days. So, how much should I award for breach of constitutional rights. I do not agree with counsel for the Plaintiff that there was a series of breaches warranting an award of K14,000.00. On the other hand, I do not agree with defence counsel that a sum of K 1,000.00 or any figure be fixed for every day spent in custody. For instance, if someone is unlawfully detained for 100 days, mathematically, he is likely to be awarded K 100,000.00. It appears to be unreasonable. In my view, the reasonable amounts be awarded as damages for unlawful detention and other violations of the constitution depending on the seriousness of each case.
    
28. In the present case the Plaintiff submits that separate awards be made for unlawful detention and for breach of constitutional rights. In my view, unlawful detention is a breach of the Plaintiff’s constitutional right and therefore, an award for unlawful detention is in fact an award for violation of the Plaintiff’s Constitutional right and therefore is sufficient. In Saa -v- Yarra & State (2014) N5700 the court awarded K 6,000.00 for breach of constitutional rights. In the present case I am of the view that K 8,000.00 is a reasonable amount, and I will award same.

Loss of Income

29. The Plaintiff submitted the sum of K3,000.00 for loss of income. This claim is too remote. It is not supported by any credible evidence. I will make no award under this head of damages.

Interest

30. The plaintiff submits interest be calculated at 8%. The defendant submits interest be charged at 2% pursuant to Judicial Proceedings (Interest on Debts & Damages) Act 2015. I am inclined to award interest at 2%.
    

Costs

31. The Plaintiff sought an order for cost. Cost shall be awarded to the Plaintiff on a party/party basis, to be taxed, if not agreed.
    

Summary

32. In summary the following shall be awarded:
    
    1. General damages K 8,000.00

b) Constitutional rights K 8,000.00

TOTAL K 16,000.00

33. I add 2% interest on K14,000.00 per annum since filing of writ (22/05/19) to date of judgment (19/02/21), interest amounts to K 532.16. The total Judgment is K16,532.16.

Orders

34. The Court orders:
    

1. Judgment for the Plaintiff in the sum of K16,532.16

2. that the Defendant shall pay the Plaintiff cost, to be taxed if not agreed.

3. that time be abridged.
________________________________________________________________
Kesno Lawyers: Lawyers for the Plaintiff
Solicitor General Lawyers: Lawyers for the Second, Third & Fourth Defendant