Seresa Kakipa v Kai Nikilli

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu J.
• Judgment Date: 08 November 2002
• Citation: (2002) N5689
• Court: National Court
• Year: 2002
• Judgement Number: N5689

Full : WS 311 of 1996; Seresa Kakipa v Kai Nikilli and the State (2002) N5689

National Court: Gavara-Nanu J.

Judgment Delivered: 8 November 2002

N5689

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 311 of 1996

BEWEEN:

SERESA KAKIPA

Plaintiff

AND:

KAI NIKILLI

First Defendant

AND:

THE STATE

Second Defendant

Mt. Hagen: Gavara-Nanu J.

2002: 5, 6 & 8 November

PRACTICE AND PROCEDURE – Village Courts Act, 1989, ss. 61, 62 & 63 – Village Court have no powers to imprison – Warrant of Commitment issued by the Village Court to imprison – Such warrant is void and having no legal effect.

PRACTICE AND PROCEDURE – Village Courts Act, 1989 – Arrest, detention and imprisonment following Orders by the Village Court – False imprisonment – Meaning of false imprisonment.

PRACTICE AND PROCEDURE – Village Courts Act, s. 109 – Indemnity to Village Court Officials and other persons acting under or for the purposes of the Act – Whether acts or omissions made in good faith – Meaning of ‘good faith’.

DAMAGES – General damages – Plaintiff’s arrest, detention and imprisonment being without reasonable and probable cause.

DAMAGES – Exemplary damages – The Court’s discretion to award exemplary damages – Exemplary damages awarded to reflect Court’s condemnation of the outrageous and illegal actions amounting to infringement of plaintiff's basic rights – Constitution, s. 58 – Wrongs (Miscellaneous Provisions) Act, Chapter 297, ss. 1 (1) (a) and (4), discussed.

DAMAGES – Vicarious liability of the State – The actions of servants and agents of the State – Police raid of a village– Destruction and damage caused to houses and personal property of the plaintiff.

Facts

On or about 12th September, 1993, the plaintiff was ordered by the first defendant who was a Village Court Magistrate in Kindarep in Enga Province to pay K100.00 compensation to her husband for assaulting him. On 6th May, 1994, a policeman attached to Laiagam Police Station arrested the plaintiff and detained her at Porgera Police Station for not paying K1,000.00 compensation to her husband. This was contrary to the order given by the Kindarep Village Court on or about 12th September, 1993.

The plaintiff was later transferred to Laiagam Police Station where she was detained for about a week before being transferred to Baisu Gaol in Western Highlands to serve six months imprisonment ordered by Liop Village Court also in Enga Province.

When the plaintiff was detained at Laiagam Police Station, her brother tried to bail her with K500.00 but police refused bail.

The plaintiff was imprisoned for six months at Baisu under a Warrant of Commitment issued by the Liop Village Court. This warrant was endorsed by the Laiagam District Court for not paying K1,000.00 compensation to her husband, although no such order was made by the Kindarep Village Court. The only order the Kindarep Village Court made on or about 12th September, 1993, as noted earlier was for the plaintiff to pay K100.00 compensation to her husband. When the plaintiff was in Baisu Gaol she was with her seven month old child.

The plaintiff got very sick while in gaol and was admitted at the Mt Hagen General Hospital. She stayed at the hospital until 15th October, 1994, when she escaped.

Held:

1. The Village Courts have no power to order imprisonment under the Village Courts Act 1989. The Warrant of Commitment issued by Liop Village Court for the plaintiff to be imprisoned for six months at Baisu Gaol is void and is of no legal effect.

2. The Liop Village Court had no power to imprison the plaintiff, thus the plaintiff’s arrest, detention and subsequent imprisonment amounted to false imprisonment.

3. The defendants did not act in good faith thus they were not indemnified for their actions under s. 109 of the Village Courts Act 1989. The defendants infringed the plaintiff’s rights to liberty and a fair hearing, thus are liable to pay damages, including exemplary damages to the plaintiff. Abel Tomba –v- The Independent State of Papua New Guinea SC598 and James Koimo –v- The Independent State of Papua New Guinea [1995] PNGLR 535, discussed.

Cases cited:

Papua New guinea Cases

Abel Tomba –v- The Independent State of Papua New Guinea SC 518

James Koimo v. The Independent State of Papua New Guinea [1995] PNGLR 535

MVIT v. John Etape [1994] PNGLR 596

Pawa Kombea v. Semal Peke [1994] PNGLR 572

PNGBC v. Jeff Tole SC694

Rimbink Pato -v- Umbu Pupu [1986] PNGLR 310

Sangara (Holdings) Limited -v- Hamac Holdings Limited (In Liquidation) [1973] PNGLR 504

The State v. Kofowei [1987] PNGLR 5

Yawi Kawi MP. No. 1 of 2000.

Other cases cited:

Jesse Jones v. John Gordon (1876-77) 2 App. Cas. 616

Tatam v. Hasler & Anor (1899) 23 Q.B.D. 345

Watson v. Marshall & Cade (1970-71) 124 C.L.R. 621

Legislations & Text Books cited:

Arrest Act, Chapter No. 339

Bail Act, Chapter No. 340

District Courts Act, Chapter No. 40

Claims By and Against The State Act, 1996

Constitution of the Independent State of Papua New Guinea

Constitutional Planning Committee Report

Principles of Practice and Procedure by O’Leary Hogan,(Butterworth), 1976

Village Courts Act, 1989

Wrongs Miscellaneous Provisions Act, Chapter No. 297

Counsel:

P. Dowa, for the plaintiff

B. Ovia, for the defendants

8th November, 2002

1. GAVARA-NANU J: The plaintiff claims damages against the defendants for malicious prosecution and false imprisonment. The claims arise from her arrest by the defendants’ agents on 6 May, 1994 and her subsequent detention at the Laiagam and Porgera Police Stations, then her subsequent imprisonment for six months at Baisu Gaol in Mt. Hagen in June, 1994. The plaintiff is a simple village woman from Enga Province. When in gaol she had her infant child aged seven months with her. The plaintiff's arrest, detention and the subsequent imprisonment were a result of plaintiff’s alleged failure to comply with the orders made by the first defendant who was a Village Court Magistrate in Kindarep in Enga Province. As will be seen later, the plaintiff was imprisoned for failing to pay K1,000.00 in compensation to her husband, although the actual order by Kindarep Village Court was for the plaintiff to pay K100.00 compensation to her husband.

2. The plaintiff claims that her arrest, detention and subsequent imprisonment were wrongful and without reasonable and probable cause. Thus she claims she was unlawfully deprived of her liberty.

3. In her affidavit sworn on 15 February, 1996, the plaintiff deposed that she was 35 years old. She would therefore be about 41 years old now. In the affidavit, she also deposed that she was married in 1972. Assuming the age she gave in her affidavit is correct, she would have got married at the age of about 11. To my assessment of her age she appeared to be much older than the age she gave. I think she is either in her mid or late 40s. Thus, at the time of her arrest on 6 May, 1994 and her subsequent imprisonment at Baisu Gaol in June 1994, she was a middle aged woman. There is evidence that she has seven children. That in my view lends support to my assessment of her age.

4. The brief background facts are as follows. On or about 12 September, 1993, the plaintiff and her husband had an argument which led to them assaulting each other. The husband subsequently laid a complainant with Kindarep Village Court against the plaintiff for assault. The plaintiff later appeared before that Village Court which was presided by the first defendant. After deliberating on the complaint, the first defendant ordered the plaintiff to pay K100.00 compensation to the husband, and the husband was ordered to pay K150.00 compensation to the plaintiff. They were also ordered to each pay K10.00 fine. The plaintiff paid the fine but not the K100.00 compensation to her husband.

5. The order by Kindarep Village Court is annexed to the plaintiff’s affidavit as Annexure ‘A”. That order does not bear any date therefore it is not known when it was made. However, the order indicates that the plaintiff and her husband were ordered to go back to Kindarep Village Court on 28 September, 1993, to make their respective compensation payments before the Village Court Magistrate. So going by the order and all the materials before the Court the order by Kindarep Village Court was made on or about 12 September, 1993.

6. After Kindarep Village Court made the above orders, the plaintiff went to her brother in Porgera to ask for financial assistance to help her pay the K100.00 compensation to her husband. In her affidavit she deposed that she stayed in Porgera until the end of April, 1994, when a Warrant of Commitment issued by Liop Village Court and endorsed by Laiagam District Court was served on her by a policeman from Laiagam Police Station. The warrant was for her to be committed to Baisu Gaol to serve six months imprisonment for failing to pay K1,000.00 compensation to her husband. As I alluded to earlier, the Kindarep Village Court, did not make such an order, the only order the Kindarep Village Court made was on 12 September, 1993, when she was ordered to pay K100.00 compensation to her...