Jack Topo v Kelly Kaman and The Independent State of Papua New Guinea (2009) N3773

• Jurisdiction: Papua New Guinea
• Judge: Makail J
• Judgment Date: 07 September 2009
• Court: National Court
• Docket Number: WS NO 1631 OF 2001
• Citation: (2009) N3773
• Year: 2009
• Judgement Number: N3773

Full : WS No 1631 of 2001; Jack Topo v Kelly Kaman and the Independent State of Papua New Guinea (2009) N3773

National Court: Makail J,

Judgment Delivered: 7 September 2009

N3773

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1631 OF 2001

BETWEEN

JACK TOPO

Plaintiff

AND

KELLY KAMAN

First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Mount Hagen: Makail J,

2009: 10th June & 07th September

TORT - Liability - Trespass - Police assault and battery - Unlawful detention - Malicious prosecution - No evidence to refute allegations of assault, battery, unlawful detention and malicious prosecution - Reasons for detention unsubstantiated - Policemen acting in the course of duty - Liability established - Constitution - Section 42(2)&(3) - Wrongs (Miscellaneous Provisions) Act Ch 297 - Section 1.

DAMAGES - Assessment of damages - Body injuries - Award of K5,000.00 as general damages for pain and suffering - Award of K10,000.00 as damages for unlawful detention - Award of K10,000.00 as damages for malicious prosecution - Award of K1,000.00 as economic loss - Award of K1,500.00 as nominal damages - Exemplary damages awarded against policeman.

Cases cited:

George Kala -v- Joseph Kupo & The State (2009) N3677

Ronald Alexander McKenzie -v- The State (1998) SC 596

Madiu Andrew -v- Mineral Resources Development Co Limited (2004) N2601

Demba Kalo -v- Cornnie Akaya & The State (2007) N3213

Mahara Ignote -v- Abraham Hualupmomi & The State [1996] PNGLR 308

Pawa Kombea -v- Semal Peke [1994] PNGLR 572

Motor Vehicle Insurance Trust -v- Salio Tabanto [1995] PNGLR 214

Tabie Mathias Koim & Ors -v- The State & Ors [1998] PNGLR 247

George Chapok -v- James Yali & Fred Muliupa (2008) N3474

Kawi Yawi -v- Torepa Nenga, Anton Sinawai & The State (2002) N2209

Teine Molomb -v- The State (2005) N2861

Jubilee Hambru -v- Michael Baur & The State (2007) N3193

David Haluya -v- Samson Gurel & The State (2001) N2109

Abel Tomba -v- The State (1997) SC 518

James Liwa & Peter Kuriti -v- Markis Vanimo & The State (2008) N3486

Counsel:

Mr D. Gonol, for Plaintiff

No appearance for Defendants

JUDGMENT

7th September, 2009

1. MAKAIL J: The Plaintiff is a 29 year-old male adult from Nondugl village in Minj of the Western Highlands Province and brings this proceeding against the Defendants for damages arising from tortuous actions allegedly committed by members of the police force between 31st August 2000 and 15th January 2001. By his Writ of Summons filed on 13th November 2001, he seeks the following damages:

1. General damages for pain and suffering;

2. General damages for false imprisonment;

3. General damages for malicious prosecution;

4. General damages for defamation of character;

5. Special damages;

6. Damages for economic loss;

7. Exemplary damages;

8. 8% interest; and

9. Legal costs.

2. The matter came for trial on 10th June 2009 although it was originally fixed for a two days trial on 10th and 11th June. It proceeded as an ex-parte trial on liability and assessment of damages at 1:30 pm on 10th June after I had to complete hearing of a part heard trial matter which was carried over from the previous day to the morning of 10th June. Mr Gonol, counsel for the Plaintiff and Ms Doa of the Solicitor General’s office and counsel for the Defendants were both present that morning but come the afternoon, only Mr Gonol appeared. Ms Doa was nowhere to be seen.

3. As time is a precious and scarce “commodity” in this day and age, I did not wish to waste it and granted leave to the Plaintiff to proceed ex-parte pursuant to his counsel’s application and received evidence from the Plaintiff which comprised of the following:

1. His Affidavit sworn on 22nd August 2002 and filed on 23rd August 2002 (Exhibit “P1”),

2. His Affidavit sworn on 6th April 2005 and filed on 06th August 2005 (Exhibit “P2”),

3. Affidavit of Maureen Wusik sworn on 23rd March 2005 and filed on 29th April August 2005 (Exhibit “P3”),

4. Affidavit of Dr Allan Kulunga sworn on 9th March 2005 and filed on 02nd August 2005 (Exhibit “P4”),

5. Affidavit of Jack Alne sworn on 8th March 2005 and filed on 16th March 2005 (Exhibit “P5”), and

6. Affidavit of Jack Waulga sworn on 23rd March 2005 and filed on 02nd March 2005 (Exhibit “P6”).

4. None of the witnesses including the Plaintiff were called to give further oral evidence, thus the Plaintiff’s case is based purely on Affidavits. After close of the Plaintiff’s case and as there was no representation by the Defendants to present their case, I directed the Plaintiff’s counsel to file written submissions on the question of liability and also assessment of damages by or before close of business on 19th June 2009 and reserved my decision until 26th June 2009. I did not give my decision on 26th June 2009 but deferred it until today. This is my decision.

LIABILITY

5. The first issue for determination is liability. Are the Defendants liable for the alleged wrongful actions?

6. From the above Affidavits (Exhibit “P1” to Exhibit “P6”), I deduce the following as the undisputed facts; on the night of 31st August 2000 at Nondugl in the Western Highlands Province, an alleged rape of two females occurred and it was alleged that the Plaintiff was one of the rapists. On the night of the alleged rape, he was at his house. At about midnight, some informants including a reserve policeman came to his house and knocked on the door. He answered by opening the door and saw about 10 men including a reserved policeman standing outside the house. Without any questions, these men and the reserved policeman grabbed him and dragged him down the verandah of the house. On the ground, they assaulted him by punching and kicking him all over his body.

7. As these men were beating him, the Medical Orderly of Nondugl Health Center, one John Tumun came out of the house and called out telling then to stop because they had attacked a wrong person. He told them that the Plaintiff lived with him and was not involved in the alleged rape because he was with him that evening. But these men dragged the Plaintiff all the way to Nondugl Police Station, located about half a kilometer from his house. On the way, these men continued to assault him by punching and kicking him all over his body. In the process, one of his teeth was knock out and he bled profusely that night.

8. When they arrived at the Police Station, the First Defendant and another, policeman called Thomas Kapal assaulted him again by punching him on his jaw and almost broke it. These two policemen tied his hands and threw him into the cell. At about 3:00 am, the Nondugl Coffee Plantation Manager came with a truck full of people. The Plaintiff was taken out of the cell to meet them. The Plantation Manager alleged that the Plaintiff and some other men packed raped two females at the coffee plantation. As a result, the Plaintiff was thrown back into the cell.

9. The next day, the Plaintiff was taken out of the cell to meet a big crowd of people comprising of the alleged victims’ family members and village leaders including the Plantation Manager. The alleged victims were brought forward to confirm if the Plaintiff was one of the rapists but they could not confirm so. They were ushered away and when they returned, this time they identified the Plaintiff as one of the rapists. The Plaintiff honestly believed that the alleged victims were coerced into changing their story of the alleged rape and those involved, hence he was wrongly accused.

10. He remained at Nondugl Police Station cell until 02nd September 2000 where he was transferred to Banz Police Station by the First Defendant, Constables Thomas Kapal and Akir in a white ten seater station wagon registration no. TAA-968. After being detained for more than a month, on 17th October 2000, the First Defendant and two other unidentified policemen came to the cell and took him out for a chat. They told him that he was not involved in the alleged rape incident but suggested that he should remain at the Police Station until the tense situation in the village between the relatives of the alleged victims and the actual perpetrators died down.

11. The Plaintiff rejected the suggestion to remain at the Police Station and maintained his innocence. As a result, the First Defendant was furious and put his hands on the Plaintiff’s hand and told him that he (First Defendant) was formally arresting him for the crime of rape of the alleged victims. After that, the First Defendant placed him back in the cell and left.

12. From 17th October 2000, he appeared twice at the Minj District Court but on those occasions, the Magistrate told him that the police file was not ready. As a result, his case could not be heard. He was also refused bail. The first appearance was on 24th October and the second, on 21st November 2000. At other times, four in total, when his case was called at Minj District Court, he was not present because there was no vehicle to transport him from Banz Police Station cell or Baisu CIS to the Court house at Minj.

13. On the last mention of his case at Minj District Court on 21st December 2000, his father Jack Alne was present...