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Mankomy v Commissioner of Correctional Services [1999] PGDC 11; DC57 (11 June 1999)

Unreported District Court Decisions

[1999] PNGDC 14 - ELIAS MANKOMY V COMMISSIONER OF CORRECTIONAL SERVICES

[1999] PNGDC 14

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NOS 44-46 OF 1999

ELIAS MANKOMY (Complainant)

v

THE COMMISSIONER OF CORRECTIONAL SERVICES (1^st Defendant) AND THE DEPARTMENT OF CORRECTIONAL SERVICES (2^nd Defendant) AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA (3^rd Defendant)

Kimbe

S Lenalia PM

26 May 1999

11 June 1999

CIVIL JURISDICTION�Action for wrongs�Statutory provisions�Non compliance with�Infringement of statutory obligations�Constitutional obligation�Provisions�Conditions of Detention�Clothing necessity�Ex-prisoner�Evidence�Civil standard�Defendants no liability.

Cases referred to:

Komiap Trading v George Waugulo and The State [1995] PNGLR 165

Admiralty Comrs v SS Valeria [1922] 2 AC 242

Rookes v Barnard [1964] UKHL 1; [1964] AC 1129

Bonham-Carter v Hyden Park Hotel Ltd [1948] 64 TLR 177

Jonathan Mangope Paraia v Inspector Jacob Yansuan and Ors [1995] N1343

Legislation:

Correctional Services Act s124(1), s152

Evidence Act (Ch48) s33-s37

Criminal Code s386(2)

Constitution s57, s58

Representation:

Counsel/Representative:

Complainant: W Malo

Defendants: D Piandi

Lawyers/Representative:

Complainant: Latu Lawyers

Defendants: Legal Officer�CIS Headquarters

S LENALIA PM:

N1>[1]����� The complainant being an ex-prisoner served an imprisonment term of three and half (3�) years for an indictable offence of armed robbery and commenced serving on 22 April 1996 and with remission was discharged on September 3 1998. The complainant pleads the following cause in his Statement of Claim.

N1>[2]����� STATEMENT OF CLAIM

N2>1.������ The Complainant is a citizen of Papua New Guinea and was formerly a prisoner serving three and a half years at Lakiemata Goal, Kimbe, West New Britain Province and is capable of suing in his own name.

N2>2.������ The First Defendant is the servant of the Second Defendant and the Third Defendant respectively and is or was at all material times being the employ of the Second and Third Defendants and is capable of being sued in that capacity.

N2>3.������ The Second Defendant is a body duly established under the constitution of Papua New Guinea and is capable of being sued under its name and capacity.

N2>4.������ The Third Defendant is the State of Papua New Guinea and is capable of suing and be sued in that capacity.

N2>5.������ From 1996 to 3 September 1998 the Complainant was a prisoner at Lakiemata Goal, Kimbe, West New Britain Province and as such was under the direct care and custody of the First, Second and Third Defendant.

N2>6.������ During his imprisonment and whilst under the direct care and custody of the said Defendants, they failed to perform a mandatory requirement to provide clothing for his use during his imprisonment term and therefore are in breach of the Statutory provisions of the Correctional Services Act s124(1)(a)(b) and as a result the Complainant had suffered damage and loss.

N2>7.������ Due to the Defendants breach of a Statutory duty, the Complainant therefore Claims.

N1>[3]����� The Complainant thus sues the three defendants for lack of provision of necessity in terms of clothing at K1,092.50, aggravated damages and cost of these proceedings.

N1>[4]����� Due to the nature of the case and the fact that the Defence Lawyers were and are operating from Moresby, the Court gave directions to the parties to file affidavit evidence pursuant to s33-s37 of the Evidence Act (Ch48). Each deponent both for Complainant and Defendants were called to identify under oath their affidavit evidence which were all tendered and accepted as evidence of each party's claim. The Defence filed an Intention to Defend and the matter went on trial as scheduled.

N1>[5]����� The complainant's evidence is that he is an ex-prisoner being sentenced by the National Court sitting in Kimbe on 22 April 1996 and was discharged in September 1998. The offence for which the complainant was convicted was armed robbery under s386(2)(a)(b) of the Criminal Code. Elias' evidence suggest that whilst serving his three and a half years term at the Lakiemata Goal, he was never being issued with appropriate necessity clothing for his comfort suitable for the climate and for work at Lakiemata goal.

N1>[6]����� It is part of the Complainant's evidence that whilst at the goal, a Correctional Officer, Major Kent Kengu Busang addressed the prisoners during a routine inspection parade telling detainees that since the government does not have the money to buy clothing for prisoners, individual prisoners should buy their own clothing by asking either their parents or relatives to buy them clothes.

N1>[7]����� The complainant further deposes that when he appeared before the National Court on 20 May 1998, a National Court judge advised the complainant to sue the three defendants for failure to provide clothing for his stay at the Lakiemata Provincial Goal as it is a requirement or statutory duty to supply a prisoner with basic necessities whilst in prison and to which I quite agree. The complainant further pleads that during his term of imprisonment, he was under the direct care and control of the first and second defendants being agents of the third defendant, failed to perform a mandatory duty required of them by s124(1)(a)(b) of the Correctional Service Act which provides:�

N2>124.��� Clothing.

(1)����� A detainee shall be issued with clothing that is�

(a)����� suitable for the climate and for any work that the detainee is required to do; and

(b)����� adequate to maintain the health of the detainee.

(2)����� Regulations and Standing Orders may provide for�

(a)����� the clothing issue of detainees; and

(b)����� standards of personal appearance to be maintained, taking into consideration normal patterns of dress and behaviour and appearance and the security and good order of the correctional institutions.

N1>[8]����� The Complainant called two witnesses who also filed affidavit evidence, David Jacko and Joel Waiyu. David deposed that he is an ex-prisoner who served at Lakiemata Goal from 1994 to 12 March 1999. David's evidence substantiates evidence of the complainant and that of Joel that they each saw the complainant had a bag of clothes kept and stored at the property records section. David and Joel also say that they too were not provided with appropriate prison clothing. Joel only served a six (6) months summary sentence in time to see that the complainant had a bag of clothes.

N1>[9]����� The three defendants filed notices of intention to defend alleging inter alia that though they admit paragraphs 1, 2, 3, 4 and 5 of the Statement of Claim, they deny paragraphs 6 and 7. Only one witness Major Kent Kengu Busang was called.

N1>[10]��� Sergeant Major Kent the officer-in-charge at the records and property section at the Lakiemata Goal said he recalls that the complainant was a prisoner at Lakiemata and he recalls that he was issued with appropriate clothing and it was him also who recorded the complainant's properties on the Remand Detainees�Warrant cover. According to Major Kent when the complainant was committed on 22 April 1996, the complainant had three (3) pieces of clothing recorded in the Warrant Cover. In the Warrant Cover itself with the name recorded on the top "ELIAS MANKOMY'. Elias' personal properties included the following, one (1) blue shirt, one (1) black trousers and one (1) Penrith rugby League Jersey. On the bottom left hand side of Ann. A was affixed an "X" mark on the space provided for signature of detainee indicating that the complainant certified receipt of the three pieces of clothing on completion of his term of imprisonment.

N1>[11]��� I am grateful to submissions made by the defence lawyer and Mr Malo who by leave of the court represented the complainant. The defence submission is basically that the complainant has not proven his case on the "balance of probabilities". Mr Malo for the complainant submitted that complainant has proven his case. Basing his argument on a number of authorities including statutory provisions. Mr Malo cited the case of Komiap Trading v George Waugulo and The State [1995] PNGLR 165 on which the judge there assessed damages in regard to a police raid under the command of the first defendant raided the premises of the plaintiff, a company which conducted business in wholesale and retail trading a fast food outlet and a fuel and tyre service all of which were looted and completely destroyed. It may be true that the plaintiff may have kept some clothes in his cell blocks and it may be true that Major Kent Busang may have advised detainees to acquire more clothing for themselves but I must question myself as to why was it that there was no records kept by the CIS authorities of additional clothing.

N1>[12]��� It is noted here that the case of Komaip Trading involved looting of the property and which no proper records of accounts were kept and on which the judge there was sure from evidence that the complainant's stock was substantial. In the claim before me, the complainant sues for a statutory breach pursuant to s124(1)(a)(b) alleging lack of provision of clothing. Accounts kept by CIS show that the complainant was issued with two (2) laplaps, one (1) shirt and other items.

N1>[13]��� The complainant has properly claimed for breach of statutory duty in this court. He is entitled to claim for such breach since it is one of the guaranteed rights provided for in our Constitution s57. Subsection (1) of that section says�

N2>"57.��� Enforcement of guaranteed rights and freedoms.

A right or freedom referred to in this Division shall be protected by and is enforceable in, the Supreme court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority".

N1>[14]��� A person whose rights or freedoms are protected by an Act of Parliament is infringed or has been breached he or she is entitled to compensation under s58 of the Constitution.

N1>[15]��� It is settled law that when a person causes harm of any nature to another or to his property the normal remedy the law will give if proven is the right to recover damages. If it is a Constitutional or statutory infringement it must also be proven to the required standard of proof that of proof on the balance of probabilities. It was stated in Admiralty Comrs v SS Valeria [1922] 2 AC 242 at 248 that:

"The true method of expression I think is that in calculating damages you are to consider what is the percuniary sum which will make good to the suffer, so far as money can do so, the loss which he has suffered as the natural result of the wrong done to him". [emphasis added].

N1>[16]��� The primary object of an award is to compensate complainant for the wrong done to him; Rookes v Barnard [1964] UKHL 1; [1964] AC 1129. The law is simply that a complainant must prove his damages in accordance with established principles required in civil litigation. In Bonham-Carter v Hyden Park Hotel Ltd [1948] 64 TLR 177 at 178 Lord Goddard CJ said�

"Plaintiff's must understand that, if they bring actions for damages it is for them to prove their damages; it is not enough to write down particulars, and, so to speak throw them at the head of the court saying: 'This is what I have lost; I ask you to give me these damages.' They have to prove it".

N1>[17]��� This principle was adopted in Jonathan Mangope Paraia v Inspector Jacob Yansuan [1995] N1343.

N1>[18]��� There are two sides to this claim. First, the complainant claims for clothes he was using while serving imprisonment. I agree that statutorily the three defendants were bound by s124 of the Correctional Service Act to provide clothing for the complainant suitable for the climate and for work which a detainee is required to do whilst serving a term of imprisonment. Although the complainant has submitted a list of clothing and their prices, he has not produced evidence of expenditures of such clothing. In order for this Court to make an award, the complainant ought to prove that he actually spent monies on such clothing and the persons who bought the clothes should have been called to give evidence to substantiate the claim. As such no receipts of payments were even produced to support his claim.

N1>[19]��� The complainant and his two witnesses gave evidence suggesting that the complainant and kept and maintained a bag of clothes in either the property shed or in the cells occupied by the complainant in my view would be contrary to the terms and intention of s152(d) and (f) of the Correctional Service Act which makes it an offence for a detainee to have in his possession any article or substance not issued or authorized by a member or medical practitioner. It is even an offence to receive a parcel containing any article that a detainee knows to be unauthorised: see s152(f).

N1>[20]��� The second aspect of the complainant's claim is that if it was true that the complainant had not been issued with clothing appropriate for his term of imprisonment is a constitutional breach by itself and is actionable per se. The defence evidence show that on arrival at the Lakiemata Goal on 22 April 1996, the complainant was issued with two (2) laplaps, one (1) shirt, two (2) blankets, one (1) towel, one (1) spoon, one (1) cup and one (1) plate. I suppose that if the complainant had brought new clothing into the CIS premises, he was required to have them recorded at the property office in the Remand Detainees�Warrant Cover. Having said this the lack of provision of clothing has not been proven and as I have tried to discuss the onus of proving the unconstitutionality or a statutory breach is on the party who asserts it. I dismiss this claim and the party shall bare their own costs.