Demba Kalo v Cornnie Akaya and Sam Inguba, Commissioner of Police and The Independent State of Papua New Guinea (2007) N3203

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 31 May 2007
• Court: National Court
• Citation: (2007) N3213
• Docket Number: WS 961 OF 2005
• Year: 2007
• Judgement Number: N3213

Full Title: WS 961 OF 2005; Demba Kalo v Cornnie Akaya and Sam Inguba, Commissioner of Police and The Independent State of Papua New Guinea (2007) N3203

National Court: Davani, J

Judgment Delivered: 31 May 2007

N3213

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 961 OF 2005

BETWEEN:

DEMBA KALO

Plaintiff

AND:

CORNNIE AKAYA

First Defendant

AND:

SAM INGUBA, COMMISSIONER OF POLICE

Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Davani, .J

2007: 17, 18, 31 May

Negligence – Malicious Prosecution - elements of Malicious Prosecution to be proven, that defendant to be the prosecutor, proceedings to terminate in plaintiffs favour, there must be absence of reasonable and probable cause and there must be malice.

Damages – Malicious Prosecution – plaintiff assaulted – suffered injuries – arrested – charge dismissed for want of prosecution – injuries and expenses and other out of pocket expenses not particularized – claim not considered – O. 8 r. 33 of National Court Rules.

Damages – Assault to plaintiff by policeman – injuries to face and body – 35% loss of efficient vision of both eyes – K20,000.00 award for eye injury and disability – K5,000.00 for bruises to face and body.

Cases Cited

PNG cases

Brendon John Aspinall by his next friend David Lee James Eastwood v the Independent State of Papua New Guinea and Terence John Aspinall [1979] PNGLR 642;

Wama Paul an infant by next friend Dan Paul v Anton Kare & The Independent State of Papua New Guinea [1983] PNGLR 276;

Takie Murray v Norman Kinamur [1983] PNGLR 446;

Ume More & Ors v University of Papua New Guinea [1985] PNGLR 401;

Toglai Apa & Ors v the State N1267;

Carmelita Mary Collins v. Motor Vehicles (PNG) Insurance Trust [1990] PNGLR 580;

Dawa Yomi v. the State (19/03/90) N823;

Pepena v Malabas & the State N960 (1991);

Repas Waima v. Motor Vehicles Trust [1992] PNGLR 254;

Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370;

John Tuin Solomon v the State & Others [1994] PNGLR 265;

Motor Vehicles Insurance (PNG) Trust v. John Etape [1995] PNGLR 214;

Toglai Apa & Others v. The State N1267;

Mahara Ignote v Abraham Hualupmomi and the State [1996] PNGLR 308;

An application for enforcement of human rights pursuant to s. 57 of the Constitution, application by Kunzi Waso [1996] PNGLR 218;

Dorothy Kesley Tuba (an infant by her next friend Helen Tuba) v the State

N1581 (1997);

Bia Sam v. Paul Hauram, Henry Tokam & The State [1998] 246;

Paul John v Gerd Lindhardt and Servicom Pty Limited (1999) N1938;

Tony Wemin & 227 Ors v. Robert Kalasim, Provincial Police Commander of Simbu & The State (21/06/01) N2134;

Madiu Andrew v Mineral Resources Development Co. Ltd (2004) N2601.

Overseas cases cited

Abrath v North Eastern Railway Co (1883) 11 QBD 440 at 455;

Brown v Hawkes (1891) 2 QB 718;

Peston M. Mody v Queen Insurance Co. (1900) ILR 25 bomb 332;

Cruise v Burke (1919) 2IR 182;

Davies v Gell (1924) 35 CLR 275;

Blay v Pollard and Morris [1930] 1 KB 628;

Commonwealth Life Assurance Society Ltd v Brain (1934 – 1935) 53 CLR 343;

Bruce v Oldhams Press Ltd [1936] 3 All ER 287;

Herniman v Smith [1938] AC 305;

Mitchell v John Hein and Son Ltd (1938) 38 SR (NSW) 466;

London Passenger Transport Board v Moscrop [1942] 1 All ER 97;

Trobridge v Hardy (1955) 94 CLR 147

Nye v State of New South Wales and Others [2003] NSWSC 1212;

Counsel:

S. Kassman, for the plaintiff

M. Kias and B. Bakau, for all defendants

DECISION

31 May, 2007

1. DAVANI J: Before me is a trial on liability and quantum where the plaintiff claims general damages for assault, malicious prosecution, breach of constitutional rights, exemplary damages and repayment of bail monies, medical expenses and fares.

2. Both liability and quantum are in issue.

Background

3. The plaintiff alleges that on or about 13 December, 2004, he was verbally and physically assaulted by the first defendant. He alleges that this occurred at a check point at the Doa Police Station, Central Province. Apart from being physically assaulted, the plaintiff alleges that he was locked up for no reason in the Doa Police cells, for about a day and a few hours, that he was not charged nor was the matter prosecuted, that bail monies he paid were misappropriated and that by not being charged, that he was wrongfully arrested and maliciously presented. He also alleges further that he received permanent injuries to his eye and body because of the beatings allegedly inflicted upon him by the first defendant.

4. By Writ of Summons and Statement of Claim filed on 24 June, 2005, (‘the Writ’) the plaintiff makes these claims and the claim for damages. By Defence filed on 26 January, 2006, the defendants deny the allegations stating further that;

1. The plaintiff was arrested and locked up because he had resisted arrest;

2. That the plaintiff was not maliciously prosecuted;

3. That bail monies of K100.00 were not misappropriated, and that therefore, the plaintiff is not entitled to any claim for damages.

5. By Reply filed on 9 February, 2006, the plaintiff reiterates the claims made in the Writ.

6. In accordance with the Listings Rules, the court conducted a status conference of this matter at the commencement of the circuit, on 7 May 2007, as this matter was scheduled for hearing on 10th and 11 May 2007. The plaintiff did not have a lawyer and Ms Kias of the Solicitor-General’s office did not appear. The court adjourned to 8 May, 2007. On 8 May, only Mr Kassman appeared and informed the Court that he had just received instructions from the plaintiff to act for him. Ms Kias did not appear for the defendants. The court confirmed the trial dates of 10th and 11 May, 2007. On 10 May 2007, the trial commenced. Ms Kias appeared and informed the court of the following;

1. The defendants did not file any affidavits and will not be relying on any;

2. That she will not cross-examine deponents of affidavits filed on behalf of the plaintiff including the plaintiff;

3. That the defendants do not contest liability.

7. The Court also noted that pre-trial directions were not issued prior to the matter being set down for trial. Notwithstanding, both parties agreed to proceed to hearing. In relation to the plaintiff’s case, the Court directed that the plaintiff rely on affidavits he intended to rely on and that he had already filed, provided such affidavits were duly tendered through the deponents.

Plaintiff’s evidence

8. The plaintiff called three (3) witnesses whose evidence is contained in the following affidavits;

(a) Plaintiff Demba Kalo’s affidavits;

(i) sworn and filed on 16 November, 2005 and marked as Exhibit “A”;

(ii) sworn and filed on 12 October, 2006 and marked as Exhibit “B”;

(iii) sworn and filed on 3 November, 2006 and marked as Exhibit “C”.

(b) Richard Ovia, sworn on 12 April, 2006 and marked as Exhibit “F”.

(c) Jack Solomon, sworn on 15 April, 2006, filed on 17th May, 2006 and marked as Exhibit “G”.

9. The court refused to accept the affidavit of Oscar Waiyo sworn on 8 May, 2006 because the deponent was not in court for the affidavit to be tendered through him.

10. I should point out also that there was no issue in relation to the plaintiff having given notice to the State within time under section 5 of the Claims By and Against the State Act of 1996;

Defendants case

11. The defendants did not file any affidavits nor did any witnesses give verbal evidence on their behalf. But by its filed Defence, the defendants admit the following;

i. That the first defendant Cornnie Akaya;

- is a citizen;

- is a member of the Royal PNG Constabulary;

- was an employee of the State, the third defendant, at the relevant time;

- was stationed at the Doa Police Station at the relevant time.

ii. That the second defendant Sam Inguba, Commissioner for Police was the first defendant’s employer.

12. As for the defendants’ denials in its filed Defence, these are not substantiated by way of evidence.

Analysis of evidence and the law

13. Although Ms Kias for the State indicated that she would not cross-examine the plaintiff’s witnesses whose affidavits had been tendered, that she subsequently retracted this, then informed the court that she would cross-examine the deponents.

14. Ms Kias’s cross-examination attempted to show that the plaintiff had resisted arrest which the plaintiff denied. Ms Kias could not substantiate the State’s claims of the plaintiff resisting arrest, by any evidence.

15. I set out below, the issues and the court’s analysis of evidence on both liability and quantum.

i. Issues

There are several issues that must be proven. These are;

1. Whether the plaintiff was acting in the course his employment when the alleged assaults occurred;

2. Did the alleged assaults occur;

3. Was the plaintiff locked up in the police cells without being properly charged?;

4. Whether the plaintiff was maliciously prosecuted;

16. I discuss these issues under the part on liability.

ii. liability

Issue no. 1 - Whether the plaintiff was acting in the course of his employment when the alleged assaults occurred;

17. The plaintiff’s evidence is that on 13 December, 2006, whilst he was alighting from a PMV which had just been...