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Bellawa v Kasing [2021] PGNC 111; N8860 (17 March 2021)

N8860

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 238 OF 2015

BETWEEN:
RALPH BELLAWA
Plaintiff

AND:
PURI KASING
First Defendant

GEOFFREY VAKI, Commissioner for Police
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Lae: Dowa J
2020: 5^th November
2021: 17^th March

DAMAGES – assessment of damages following entry of default judgment – claim arising out of breach of plaintiff’s constitutional rights by the first defendant whilst in the company of other policemen conducting search at plaintiff’s work premises and home – first defendant with members of the police force extorted money from the plaintiff and never returned it to the plaintiff when requested but used it for their own purposes – first defendant still employed as a policeman – second and third defendants are vicariously liable for the acts of the first defendant and other policemen involved – first defendant to pay examplary damages – the third defendant to pay damages for breach of other constitutional rights of the plaintiff – costs follow event

Cases Cited:

Albert v Aine (2019) N7772
Abel Tomba v The State (1997) SC518
Coecon Ltd (Receiver Manager) v The National Fisheries Authority of PNG (2002) N2182
Enaia Lanyat v State (1996) N1481
Jonathan Mangope Paraia v The State (1995) N1343
John Kalaut & State (1997) N1634
Kunzie v Squad (2014) N5701
Kinsim Business Group Inc-v Joseph Homwafi, (1997) N1634
Kerr -v- Motor Vehicles Insurance (PNG) Trust (1979) PNGLR251
Kialu v Dage (2016) N6270
Kaima v Poga (2013) N5362
Members of Pyane tribe v Anawe (2010) N3911
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) SC 694
Samot v Yame (2020) N8266
Wangare v Max (2018) N7195
William Mel v. Coleman Pakalia (2005) SC790
Yooken Paklin v The State (2001) N2212
Yange Langan v The State (1995) N1369

Overseas Cases:

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

Counsel:

T. Dawidi, for the Plaintiff
B. Tomake, for the Second, & Third Defendants

JUDGMENT

17^th March, 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 15^th July 2019.

FACTS

2. The Plaintiff is a former employee of Airlines (PNG) Ltd based in Hoskins, West New Britain Province. The Plaintiff alleges, on 27^th February 2014, the first, second and third defendants, all policemen, conducted a search at the Plaintiff’s office. The police were executing a search warrant to search for illicit drugs and firearms like guns and ammunitions which they believed were being transported by the airlines company. In carrying out the search the defendants questioned the Plaintiff personally of his involvement. The defendants then apprehended the Plaintiff and took him to his house for further search. While at the Plaintiff’s house, the defendants took K5000.00 cash being the property of the Plaintiff’s Employer and thereafter demanded the Plaintiff to withdraw K10, 000.00 from his passbook. The Plaintiff was then taken to the PNG Micro Bank at Kimbe town where he withdrew K10, 000.00 from his passbook as demanded and gave the cash to the policemen. The total amount of cash taken was K15, 000.00 and the money was given to the First Defendant amongst other items as court exhibits in the company of the two policemen.

3. The Plaintiff was released sometime later without being charged for an offence and without further questioning and action. The Defendants did not return the cash to the Plaintiff and converted the same to their own use.

4. 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 sections 42 (liberty), 44 (Arbitrary Search), 49 (Privacy), and 53 (Unjust deprivation of property) of the Constitution.

5. The Plaintiff filed the current proceedings to recover damages. The proceedings against the first co-defendants namely Dethro Arua and Robin Hiahowi were discontinued. The rest of the Defendants were served, but they defaulted in filing their Defence which resulted in judgment by Default.

6. Trial on assessment of damages was conducted on 6^th November 2020, with submissions on evidence on 27^th October 2020. I reserved my ruling which I now deliver.

ISSUES

7. The issues for consideration are:

1. What is the effect of default judgment, and
2. What damages is the Plaintiff entitled to.
   

8. 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) SC 694, William Mel v. Coleman Pakalia (2005) SC790, and Albert v Aine (2019) N7772.

9. 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.”

10. 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

11. The Plaintiff relies on the following affidavit evidence:

1. Affidavit of Ralph Bellawa sworn 13^th and filed 25/08/2020.
   

12. Briefly, the Plaintiff’s evidence is that he is a former Manager /employee of Airlines (PNG) Ltd based in Hoskins, West New Britain Province. He said on 27^th February 2014, the first defendants, all policemen from the Mobile Squad 19 based at Kavugara Barracks, came to his office around 11.45am. He recognised them as first constable Puri Kassang, Constables Jethro Arua and Robin Hiahowi. They produced a Search Warrant No. 05/14 dated 18^th February 2014 to conduct a search at the Plaintiff’s office. The policemen told him they were executing the search warrant to search for illicit drugs and firearms like guns and ammunitions which they believed were being transported by the airlines company. In carrying out the search the defendants questioned the Plaintiff personally of his involvement. During the search, the policemen found 15 plastic sachets of marijuana and an airgun amongst the passenger cargo and accused the Plaintiff of possessing them. The first defendants conducted further searches on the Plaintiff and took his passbook from his waist bag. The first defendant opened the entry pages of the passbook and noticed that the Plaintiff had K11,000.00. They then asked, whether, he had any further cash in his possession. The Plaintiff told them he had his Employer’s money at his home. The defendants then apprehended the Plaintiff and took him to his house at Siki, Section One Oil Palm Settlement, Hoskins for further search. While at the Plaintiff’s house, the defendants took K5000.00 cash being the property of the Plaintiff’s Employer and thereafter demanded the Plaintiff to withdraw K10,000.00 from his passbook. The Plaintiff was then taken to the PNG Micro Bank at Kimbe town where he withdrew K10,000.00 from his passbook as demanded and gave the cash to the policemen. The total amount of cash taken was K15,000.00 and the money was given to the First Defendant in the company of the two other policemen.

13. The Plaintiff says he was released sometime later without being charged for any offence and without further questioning and action. The Defendants did not return the cash to the Plaintiff despite requests and converted the same to their own use.

14. The Plaintiff says he was then terminated by his employer and the reason for his termination is due to the false allegations and investigations made against him by the police. The Plaintiff says due to the false allegations against him, his reputation was tarnished, and he could not find a suitable wage-earning job and has now resorted to subsistence farming for a living. As a further consequence, he says, he suffers from stress and illness from time to time.

15. The Defendants rely on the following affidavit evidence:

1. Affidavit of Police Commissioner, David Manning sworn 28^th August 2020 and filed 7^th September 2020.
   

16. The Defendants evidence is that the actions of the first defendants were not authorised or sanctioned by the Police Department. The allegation of stealing the plaintiff’s money was an action that is illegal, criminal in nature and outside the scope of their lawful duty. The Commissioner says the named policemen had gone about a frolic of their own in stealing the Plaintiff’s money. However, the Defendants evidence did not conclusively state that they took any disciplinary action against the three policemen especially the first Defendant. It appears the first defendant still remains a policeman. 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. It is not open for the defendants to raise the issue of liability and thus I give little weight to the evidence given for the second and third Defendants.

I will now proceed to assessing the amounts of damages.

DAMAGES

17. 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 (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.

18. In Samot v Yame (Supra), His Honour, David J referring to the 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.)”

19. 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 is seeking various heads of damages including special damages.

20. Lawyers for the parties correctly stated the principles governing the law on 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.

21. In Livingstone-v-Rawyards Coal Co. (1908) 5App.Cas 25 (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”

22. 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

23. The first head of damages is general damages. Mr. Dawidi of counsel for the Plaintiff made no specific submission on an amount for general damages. Mr. Tomake submits that the Plaintiff did not provide any evidence for general damages and so should not be awarded.

24. General damages is for pain, suffering and loss of amenities. In Kerr -v- Motor Vehicles Insurance (PNG) Trust (1979) PNGLR251, the Supreme Court 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.”

25. 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 and therefore no malicious prosecution. However, he was picked up by police and detained for some hours under heavy guard. He suffered embarrassment, anxiety, and inconvenience. He lost his job as a direct result of the police investigations. It was a deliberate act by the defendants on an innocent man. This case is identical to the case of David Langas v David Kaiku & The State (2021) N8859, where the Plaintiff who was unlawfully detained for sixteen hours. In that case, the Plaintiff was locked up in the police cells for failing to deliver up his daughter to her husband. The Plaintiff was released after arrangements were made for the return of the wife to the husband-complainant. The Plaintiff in that case was awarded K2,000.00. In the present case the Plaintiff suffered loss of job, damage to his reputation and mental distress. I will therefore make an award of K2,000.00 for general damages.

BREACH OF CONSTITUTIONAL RIGHTS

26. The Plaintiff is seeking damages for violation of his constitutional rights in the following:

1. Liberty of a person - section 42
1. Right to freedom from Arbitrary Search & Entry -section 44.

c) Right to Privacy- section 49

d Unjust depravation of Property – section 53

27. Under this head of damages, counsel for the Plaintiff submitted an aggregate sum of K 19,000.00. The amount claimed is a sum of various figures submitted for various violations of Constitutional rights which I set out below:
    1. Breach of section 42 - K 5,000.00
    2. Breach of section 44 - K 3,000.00
    3. Breach of section 49 - K 1,000.00
    4. Breach of section 53 - K 10,000.00
28. Mr Dawidi referred to various comparable cases in support of his submissions.

29. Counsel for the Defendants submitted that the amount to be awarded for breach of constitutional rights be fixed at K1,000.00 per breach and in this case, the total should not exceed K 4,000.00. The defence counsel relies on the comparable awards made in the cases: Yange Langan v The State (1995) N1369 and Wangare v Max (2018) PGNC, N7195 in support of his submissions.

30. So, how much should I award for breach of constitutional rights. I do agree with counsel for the Plaintiff that there was a series of violation of the Plaintiff’s constitutional rights arising out of the same incident. However, I am not persuaded that an aggregate sum of K19,000.00 is warranted, neither do I accept the Defendant’s submission that the figure of K4,000.00 being the sum fixed for all breaches. In my view, an amount for damages to be awarded for unlawful detention and for that matter, for other violations of the constitution be reasonable amounts depending on the seriousness of each case. I will consider and asses each claim.

31. Section 42-deprivation of personal liberty.

(a) In the present case the Plaintiff submits that an award of K 5000.00 for deprivation of personal liberty. The defendant submits that he be awarded K 1,000.00. Mr Tomake relied on the decision in Wangere v Max (2018) PGNC 115 N7195 where the Court made an award of K 1,000.00 for the Plaintiff who was detained for 24 hours. In the present case the Plaintiff was detained for less than 24 hours. However, the agony of being deprived of personal liberty is the same. The Plaintiff was questioned and detained for very serious offences. For these reasons, I am inclined to make an award for K1,000.00.

32. Section 44 – freedom from arbitrary search and entry.

(b) The Plaintiff submits for an award of K 3,000.00 under this head of damages. Mr Dawidi relies on comparable verdicts in the cases: Kialu v Dage (2016) N6270, Kaima v Poga (2013) N5362, Members of Pyane tribe v Anawe (2010) N3911. In each of these cases the Plaintiffs were awarded K3,000.00 for unlawful searches. In the present case the defendants had a valid search warrant to search the offices of the Airlines PNG Ltd. However, they exceeded the lawful boundaries and conducted personal searches on the Plaintiff including a search at his home. In my view this constitutes arbitrary search thereby amounting to a breach. The defendant submits that an amount of K 1,000.00 should suffice under this head of damages. In my view the amount submitted by the defendant is low. Consistent with the decided cases and allowing for inflation I consider the amount of K3,000.00 is appropriate and I award same.

33. Section 49. Right to Privacy.

(c) The Plaintiff submits an amount of K1,000.00 for breach of privacy. The defendants have submitted for an award in the same amount. As the parties have reached agreement, I will award K1,000.00 under this head of damages.

34. Section 53 – Unjust Deprivation of Property.

(d) The defendants forcefully demanded and took from him K15,000.00 cash. The money was not returned to the Plaintiff. This action amounted to unlawful deprivation of property. Counsel for the Plaintiff submitted an award of K 10,000.00. The defendant submits that an amount of K 1,000.00 would be sufficient compensation under this head of damages. The Plaintiff relies on a decision in the case of Kunzie v Squad (2014) N5701 where the court awarded K6, 343.00. A study of the Kunzie case show the amount awarded was for the value of goods and cash removed from the plaintiff. In the present case I note the Plaintiff is making a separate claim of k 15,000.00 for the cash that was taken from him under the heading of Special Damages. In my view the Plaintiff is entitled to reasonable compensation for the breach of his constitutional right apart from the return of cash taken from him. What should be the appropriate amount. In my view, the amount suggested by the counsel for the Plaintiff is too high whilst the amount submitted by defence counsel is far too low. In my view a reasonable amount is K2, 000.00 and I will award same.

35. The total amount to be awarded under the head of violation of constitutional rights is K7, 000.00.

SPECIAL DAMAGES

36. During the search, the defendants took K15,000.00 cash from the Plaintiff. The amount of K5, 000.00 belong to the Plaintiff’s employer, Airlines PNG Limited. The Plaintiff submitted for the full return of the money by way of an award. Defence counsel submits that the Plaintiff is entitled to K10, 000.00 only being his own money. In respect of the claim for the Plaintiff’s employer, the defendant says no award should be made as there is no evidence. I agree with the defence submission that no credible evidence is produced for the employer’s amount. There is evidence that the Plaintiff’s employer took drastic action by terminating plaintiff’s employment immediately after learning of the police investigations. It is reasonable to assume that the Plaintiff’s employer may have recovered its money directly from the defendants. In the circumstances, I will award K 10,000.00 only.

EXEMPLARY DAMAGES

37. The Plaintiff claims exemplary damages in the statement of claim. However, Counsel for the Plaintiff did not make any specific submissions for an award. The defence counsel submits that an award of K5, 000.00 be made specifically against the first defendant only. This head of damages is punitive in nature. The Court has a discretion whether to award damages under this head of damages and to decide on whether the state is vicariously liable to pay. See Abel Tomba v The State (1997) SC518. The evidence shows the First Defendant carried out instructions from the second defendant to conduct a search on the premises of the Plaintiff’s employer. The first defendant had a warrant to search but in the process of execution, he deviated from what was lawful to engaging in tortious actions. I find this is an appropriate case for an award for punitive damages. I am also of the view that the award be made against the first Defendant only to deter other civil servants from engaging in similar conduct. The State did not sanction some of the actions of the first defendant which went beyond the scope of duties. As to the amount, I do agree with the Defendant’s submission that an award of K 5,000.00 be made against the first defendant only for deterrent purposes. I therefore award K 5,000.00 against the first defendant only.

INTEREST

38. 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. Section 4 of the Act provides that any award for interest against the State shall not exceed 8%. This gives the discretion to the Court to fix a rate up to 8%. I am therefore inclined to award interest at 8%.

COSTS

39. 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

40. In summary, the following damages shall be awarded:

1. General damages K 2,000.00

b) Constitutional rights K 7,000.00

c) Special damages K 10,000.00

d) Exemplary damages K 5,000.00

TOTAL K 24,000.00

41. I add 8% interest on K24, 000. per annum since filing of writ (11/03/15) to date of judgement (157/03/21). Interest for the last 2196 days amount to K11, 551.56. The total Judgment sum is K35, 551.56

VICARIOUS LIABILITY

42. The First Defendant and two other policemen were performing their official duties when they, especially the first defendant, deviated while performing his lawful duties. The policemen were empowered, authorised, and equipped with a search warrant to conduct a search on the premises and office of the Plaintiff’s employer. The money taken from the Plaintiff were part of the property taken as court exhibits during the investigations. If there was any illegal or improper conduct on the part of the three policemen, disciplinary action should have been taken. There is no evidence of any disciplinary action being taken by the second and the third defendants. In my view, the Third Defendant is therefore vicariously liable for the actions of the First Defendant pursuant to section1 (1) (a) of the Wrongs (Miscellaneous Provisions) Act 1975 and therefore, shall settle the judgment except for the exemplary damages.

ORDERS
43. The Court orders that:

1. Judgment be entered for the Plaintiff in the sum of K 35,551.56.
2. The State shall pay the Plaintiff the sum of K30, 551.56.
3. The First Defendant shall pay the Plaintiff K 5,000.00
4. The State shall pay the Plaintiff’s cost, to be taxed, if not agreed.
5. Time be abridged.

________________________________________________________________
Dawidi Lawyers : Lawyer for the Plaintiff
Solicitor General : Lawyer for the Second & Third Defendants