Jubilee Hambru v Michael Baur and Sam Inguba, Commissioner for Royal Papua New Guinea Constabulary and The Independent State of Papua New Guinea (2007) N3193

• Jurisdiction: Papua New Guinea
• Judge: Gavara–Nanu J
• Judgment Date: 24 September 2007
• Court: National Court
• Citation: (2007) N3193
• Docket Number: WS NO. 153 OF 2006
• Year: 2007
• Judgement Number: N3193

Full Title: WS NO. 153 OF 2006; Jubilee Hambru v Michael Baur and Sam Inguba, Commissioner for Royal Papua New Guinea Constabulary and The Independent State of Papua New Guinea (2007) N3193

National Court: Gavara–Nanu, J

Judgment Delivered: 24 September 2007

N3193

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 153 OF 2006

BETWEEN:

JUBILEE HAMBRU

-Plaintiff-

AND:

MICHAEL BAUR

-First Defendant-

AND:

SAM INGUBA, COMMISSIONER FOR

ROYAL PAPUA NEW GUINEA

CONSTABULARY

-Second Defendant-

AND:

THE INDEPENDENT STATE OF

PAPUA NEW GUINEA

-Third Defendant-

Waigani: Gavara-Nanu, J.

2007: 19 &21 February,

: 24 September

PRACTICE AND PROCEDURE - Pleadings – Failure to plead false imprisonment –Whether arrest and detention unlawful – Damages - Failure to properly plead particulars.

DAMAGES - Malicious prosecution – “Malice” may be inferred from facts – Onus on the plaintiff to show absence of reasonable and probable cause – Abuse of process – Gross negligence – Delay - Damages.

DAMAGES – Consequential loss – Plaintiff arrested and charged with robbery by the police –Custody – Committal proceedings – Case dismissed – Plaintiff terminated from his employment by his employer – Whether plaintiff can claim loss of wages against the police and the State as a consequential loss - Remoteness of damages.

PRACTICE AND PROCEDURE – Default judgment – Assessment of damages – Liability not an issue – Onus on the plaintiff to prove damages.

Facts

The plaintiff was employed by Air Niugini as a cargo officer on 26 November, 2001 on a net salary of K481.81 per fortnight. On 11 August, 2003, he was arrested and charged with armed robbery by the police. It was alleged that he in company with others stole six boxes of vanilla beans valued at 350,000.00 US Dollars (K1,261,261.26), which had arrived at the Jackson’s airport, Port Moresby, from Wewak. Plaintiff was detained at the Boroko Police station following his arrest. On 12 August, 2006, he was taken to Bomana CIS where he was remanded. While in remand, he appeared seventeen times at the Waigani Committal Court. He was released on K2, 000.00 cash bail on 15 February, 2004. After his release on bail, he appeared five more times at the Waigani Committal Court. In those twenty two appearances at the Waigani Committal Court, the police were not ready. The plaintiff’s case was eventually dismissed on 26 February, 2004, for lack of evidence. The plaintiff, who was on suspension from his employment then went and saw Air Niugini management to have his suspension lifted but was refused. He was terminated from his employment by Air Niugini on 28 December, 2004.

Held

1. Plaintiff cannot claim damages for unlawful arrest and detention when he has failed to properly plead particulars and where facts do not disclose false imprisonment.

2. “Malice” in a claim for malicious prosecution may be inferred from the facts.

3. Plaintiff who was terminated from his employment by his employer after he was arrested and charged for an offence by the police and dealt with under the due process of the law cannot claim loss of wages as a consequential loss against the police and the State. Such claim is too remote. In this regard, this case is distinguishable from Alex and Maree Latham v. Henry Peni [1977] PNGLR 435 and Lucy v. Commonwealth (1923) 33 C. L. R. 229. Principles applied in Enga Enterprises Pty Ltd v. Danny Porakali [1995] PNGLR 30 and Kinsim Buisness Group Inc. v. Joseph Hompwafi [1997] PNGLR 111 applied.

4. In a case for assessment of damages where liability is not an issue after the plaintiff has obtained a default judgment, the plaintiff still has the onus to prove his claims on the balance of probabilities. Damages cannot be awarded as a matter of course even where plaintiff’s evidence is unchallenged or uncontroverted.

Cases Cited

Angogo Gamias v. Ben Anton & Ors N1502

Alex & Marrie Latham v. Henry Peni [1977] PNGLR 435

Cory v. Blyth [1976] PNGLR 463

David Wari Kofowei v Augustine Siviri & Ors 1983 (PNGLR) 449

Enga Enterprises Pty Ltd v. Danny Porakali [1995] PNGLR 30

John Savarao v. Lau Soran & Ors [1997] PNGLR 14

Kinsim Buisness Group Inc. v. Joseph Hompwafi [1997] PNGLR 111

Lukas Roika v Peter Wama, Donnie Owaie & The State N1373

Mahera Ignote v Abraham Hualupmomi & The State (1996) PNGLR 308

Mary McChrohan v. Bechtel Pacific Corporation Ltd & Ors [1976] PNGLR 355

Milan Chapek v. The Yacht “Freja” No. 2 [1980] PNGLR 161

MVIT v. Pupune [1993] PNGLR 370

NCDIC v. Crusoe Pty Ltd [1993] PNGLR 153

Papua New Guinea Banking Corporation v Jeff Tole SC 694

Pawa Kombea v Semal Peke (1994) PNGLR 572

Pius Nui v. Senior Sergant Mas Tanda & Ors N2765

Rahonamo v. Enai (re Hitau) [1971-72] PNGLR 58

Regina v Kakius Isiura (1964) PNGLR 84

Ronald Alexander McKenzie v. The State SC 596

Teine Molomb v The Independent State of Papua New Guinea N2861

The State v Songke Mai & Gai Avi [1988] PNGLR 556

Trevor Yasken & Ors v. Walyia Abilo & Ors N3108

Overseas Cases Cited

Phillips v. Phillips [1878] 4 Q.B.D. 127

Lucy v Commonwealth (1923) 33 C.L.R. 229

Counsel

Patricia Sawanga, for the plaintiff

No Appearance, for the defendants

1. Gavara-Nanu J: The plaintiff is claiming general, special and exemplary damages against the defendants for unlawful arrest and detention and malicious prosecution. The plaintiff’s claims arise out of his arrest by the police on 11 August, 2003, upon an allegation that he on 24 June, 2003, while being employed by Air Nuigini as a cargo officer, at Jacksons airport cargo terminal in Port Moresby, armed himself with a dangerous weapon, namely a .38 caliber pistol and stole six boxes of vanilla beans, valued at 350,00.00 US Dollars (K1,261,261. 26), which had arrived as cargo from Wewak.

Factual background

2. The plaintiff’s affidavit sworn on 26 October, 2006 gives the background of the case, which is this: He commenced employment with Air Nuigini on 26 November 2001, as a cargo officer at its airfreight cargo department at Jacksons airport cargo terminal in Port Moresby. He was employed on a net salary of K481.81 per fortnight. He continued with that employment until 11 August 2003, when he was arrested and charged by the police for being allegedly involved in an armed robbery as alluded to earlier. He was detained at the Boroko Police station after his arrest, and on 12 August 2003, he was taken to Bomana CIS where he was remanded in custody for eighteen weeks until his release by the Waigani Committal Court on 15 February, 2004, on a cash bail of K2, 000.00.

3. During his remand at Bomana CIS, he appeared seventeen times at Waigani Committal Court. His case was adjourned on each of those seventeen times at the request of the police because they were not ready with the case.

4. After his release on bail on 15 February, 2004, he appeared five more times at Waigani Committal Court. The police were again not ready with the case in each of those times. In his last appearance on 26 February 2004, the police were still not ready with the case; thus, upon an application being made by him, his case was dismissed.

5. After the dismissal of his case by Waigani Committal Court, the plaintiff went back to Air Niugini and briefed its Human Resources Management Division and sought to have his suspension, which was current at the time to be lifted, and asked that he be reinstated to his former job. He was advised that any decision to have him reinstated would remain deferred and was told to keep on checking with them. He continued to check with Air Nuigini on his reinstatement until 21 December 2004, when he was told that his services were no longer required and that his final entitlements would be processed and paid to him. He was terminated on 28 December, 2004. He later approached the National Airlines Employees Association to seek its support for his reinstatement. As a result, on 11 July, 2005, the National Airlines Employees Association wrote to Air Nuigini seeking his reinstatement to his former job. That was also unsuccessful.

Plaintiff’s case

6. The plaintiff claims damages against the defendant for unlawful arrest and detention and malicious prosecution. He claims that his arrest, detention and prosecution were malicious and without any reasonable or probable cause.

7. The plaintiff obtained a default judgment against the defendants on 17 August, 2006, thus, the matter is before me only for assessment of damages. It should be noted that the defendants did not file a Notice of Intention to Defend and Defence and made no appearance at the trial. This action was therefore undefended. Consequently, facts deposed in the plaintiff’s supporting affidavit remain unchallenged and so are all the arguments advanced by the plaintiff. However, that is not to say that the plaintiff should obtain judgment for damages as a matter of course. He still carries the onus to prove his claims on the balance of probabilities. See, for instance, Angogo Gamias v. Ben Anton & Ors N1502.

8. The plaintiff has cited a number of cases on which he places reliance, including Teine Molomb v The Independent State of Papua New Guinea N2861. Using those cases, he has put his claims in general damages for malicious prosecution at K18, 000.00; for distress and frustration at K1, 000.00; for consequential loss (loss of wages from the date of his termination to the date of trial) at K22,431.24 and for exemplary damages at K10,000.00. He also claims costs and interest at eight percent.

9. The plaintiff makes his claims under three...