David Haluya v Samson Gurel and Independent State of Papua New Guinea (2001) N2109

• Jurisdiction: Papua New Guinea
• Judge: Sakora J
• Judgment Date: 28 May 2001
• Court: National Court
• Citation: (2001) N2109
• Year: 2001
• Judgement Number: N2109

Full Title: David Haluya v Samson Gurel and Independent State of Papua New Guinea (2001) N2109

National Court: Sakora J

Judgment Delivered: 28 May 2001

N2109

PAPUA NEW GUINEA

[In the National Court of Justice]

WS 442 OF 1996

BETWEEN:

DAVID HALUYA

Plaintiff

AND:

SAMSON GUREL

First Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Sakora J

2000: 17 August

2001: 28 May

Law of Torts — Wrongful arrest — False imprisonment — Malicious prosecution — Damages for.

Constitutional Law — Rights of all persons — Liberty of the Person — Damages for — Constitution, s. 42(1)

Mr Keta for the Plaintiff.

Ms Kiele for the Defendants.

28th May 2001

SAKORA J: The plaintiff's claim is for damages arising out of his arrest, charge and prosecution by the police under a provincial liquor licensing legislation. These actions of the law enforcement agency of the State resulted in the plaintiff being convicted and imprisoned for a term of 6 months (upon default in payment of a fine of K200 ordered to be paid the very same afternoon of the sentence being imposed).

The proceedings were commenced by the issuance of a Writ of Summons filed 2 May 1996 claiming, as stated above, damages for the following wrongs on the part of the State agency, the first defendant and his subordinates:

1. Wrongful arrest.

2. Breach of s. 42 Constitution.

3. False imprisonment.

4. Malicious prosecution.

The Writ having been duly served on the State on 6 May 1996, the Solicitor-General filed and served a Notice of Intention to Defend on behalf of the first and second defendants some 49 days later (some 19 days outside the prescribed period). On 24 September 1996, the plaintiff applied for and had judgment regularly entered against the defendants (there being no Defence filed under the National Court Rules (NCR)), and for damages to be assessed at a later date.

After several unsuccessful attempts by the plaintiff's lawyers to have the matter set down for hearing, due in the main (as the records demonstrate) to the procrastination of the lawyers for the defendants, it came before me on 17 August 2000 when I heard counsel and reserved decision.

Background

The facts relied upon by the plaintiff have not been challenged despite a Notice of Institution to Defend having been filed (supra). And it is upon these facts that the previous National Court ordered the entry of a default judgment against the defendants. And they (facts) demonstrate the following circumstances.

The plaintiff is a local businessman and village leader from Andiria village in the Koroba District of the Southern Highlands Province. On 21 May 1992, the first defendant in the company of two other policemen entered the plaintiff's village in an official Police vehicle, ostensibly to inspect the plaintiff's club liquor licence. The three policemen were from the neighbouring Tari Police Station where the first defendant was a senior Police Prosecutor. They were uniformed.

The policemen then proceeded to the Club where, after counting the beers and arriving at a total of 30 cartons, requested the plaintiff to produce his licence to sell the beers. Unable to produce the licence because he said it was with the Mendi licensing authorities, the plaintiff produced to the police a receipt for the payment of the licence, whereupon the first defendant stated that the licence had expired and that he (plaintiff) should bring the licence to Tari to confirm that it was current.

The next day, the 22nd May 1992, the plaintiff was arrested and taken to the Tari Police Station where he was charged with selling beers without a licence and kept in custody. The 30 cartons of beer were confiscated and taken to Tari also. On 4 June 1992 the Tari District Court heard the case and dismissed the charge. The 30 cartons of beer were ordered to be returned to the plaintiff forthwith.

The plaintiff was consequently released from custody, but the beers were not returned as ordered. About a month later the plaintiff returned to Tari Police Station and enquired about his 30 cartons of beer. The first defendant was unable to produce the cartons of beer as, it has been plaintiff's contention and claim all along, he had in fact consumed the beers with others in direct contravention of the court order.

It would appear that the first defendant then decided to recharge the plaintiff with the same offence, resulting in the plaintiff being brought before the District Court and convicted the very same day without evidence having been led. He was then fined the sum...