John Wani v the Provincial Police Commander, Western Highlands Province and John Wakon, Police Commissioner of Papua New Guinea and The Independent State of Papua New Guinea (2010) N3900.

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 22 February 2010
• Court: National Court
• Citation: (2010) N3900.
• Year: 2010
• Judgement Number: N3900

Full Title: John Wani v the Provincial Police Commander, Western Highlands Province and John Wakon, Police Commissioner of Papua New Guinea and The Independent State of Papua New Guinea (2010) N3900.

National Court: Makail, J

Judgment Delivered: 22 February 2010

N3900

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 506 OF 2001

BETWEEN

JOHN WANI

Plaintiff

AND

THE PROVINCIAL POLICE COMMANDER,

WESTERN HIGHLANDS PROVINCE

First Defendant

AND

JOHN WAKON,

POLICE COMMISSIONER OF PAPUA NEW GUINEA

Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Mount Hagen: Makail, J

2008: 11th June &

2010: 22nd February

TORT - False imprisonment - Unlawful arrest - Unlawful detention - Malicious prosecution - Defamation - Plaintiff charged with break and entry and stealing - No case submission at committal hearing - Charge withdrawn - Elements of - Proof of - Constitution - Section 42(3)&(6) - Arrest Act, Ch 339 - Section 3 - Bail Act, Ch 340 - Sections 1,3 & 6.

PRACTICE & PROCEDURE - Default judgment - Assessment of damages - False imprisonment - Malicious prosecution - Defamation - General damages - Special damages - Exemplary damages - Whether damages proven.

Cases cited:

Yange Lagan & Ors -v- The State (1995) N1369

Jack Topo -v- Kelly Kaman & The State (2009) 3773

Ronald Alexander McKenzie -v- The State (1998) SC596

Martha Limitopa & Poti Hiringe -v- The State [1988-89] PNGLR 364

Losia Mesa -v- Gari Baki as Commissioner of Police & The State (2009) N3681

James Gunambo & Anor -v- Sergeant Thomas John Upaiga & The State: WS No 1321 of 2001 (Unnumbered & Unreported Judgment of 25th January 2010)

David Wari Kofowei -v- Augustine Siviri & The State [1985] PNGLR 449

Mahara Ignote -v- Hualupmomi & The State [1996] PNGLR 208

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

Joe Hesingkeoc Nayos -v- Roy Gawi & The State (2008) N3484

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

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

Counsel:

Mr Danny Gonol, for the Plaintiff

Mr Gaure Odu, for the Defendants

JUDGMENT

22nd February, 2010

1. MAKAIL, J: In this case, the plaintiff is a 36 years old male from Wambul village in the Tambul District of the Western Highlands Province and sues the defendants for false imprisonment, malicious prosecution, and defamation of character. He claims general damages, special damages and exemplary damages against the defendants. In the statement of claim endorsed to the writ of summons filed on 24th April 2001, he alleges that on 28th September 1999, he was apprehended, arrested and charged by Mt Hagen police under the command and direction of the first defendant for break and entry and stealing of goods from Steamships Hardware building in Mt Hagen town under section 398(a)(i) of the Criminal Code, Ch 262. He was detained at Mt Hagen Police Station cells and subsequently at Baisu Corrective Institute.

2. He was detained for a period of one month and later released on bail following a successful application to the Court by his lawyers. He appeared six times at the Mt Hagen District Court for committal proceedings while in detention and out on bail. On the sixth occasion, on 7th March 2000, his lawyers made a no case submission and the police conceded to the application and withdrew the charge. He was accordingly discharged by the Court.

3. The defendants failed to file their defence within time and default judgment was entered against them on 30th November 2001. The only issue in this case therefore, is the measure of damages. It is trite law that even after entry of default judgment against a defendant, a plaintiff still bears the onus of proving his damages. The onus is discharged upon the plaintiff presenting clear and admissible evidence. In Yange Lagan & Ors -v- The State (1995) N1369 Injia, J (as he then was) said at p 4:

“In my view, the minimum requirement in any action is for the plaintiff himself to give admissible evidence in support of his claim. He is not exonerated from this duty in any way by the fact that default judgment has been entered and that the trial on assessment of damage is preceding ex parte or that he has authorised another person to give evidence on his behalf. When the primary evidence of the plaintiff is lacking, there is a serious gap in the plaintiff’s case, all other evidence being inadmissible as being hearsay or hearsay upon hearsay.”

4. In the present case, the defendants offered no evidence at trial. Hence, the un-controverted evidence of the plaintiff in his affidavit sworn on 25th November 2004 and filed on 28th September 2005, (exhibit “P1”) and corroborated by witnesses, Alfred Kiap Dowa in his affidavit sworn on 25th May 2006 and filed on 30th May 2006, (exhibit “P2”) and his wife Helen Wani in her affidavit sworn on 3rd May 2005 and filed on 5th May 2005, (exhibit “P3”) are these: the plaintiff is an employee of Telikom (PNG) Limited and based in Mt Hagen. He held the position of Assistant Regional Telikom Lands Manager (Highlands Region).

5. On 28th September 1999, he was apprehended, arrested and charged by Mt Hagen police under the command and direction of the first defendant for break and entry and stealing of goods from Steamships Hardware building in Mt Hagen town valued at K14,916.77 under section 398(a)(i) of the Criminal Code, Ch 262. He was detained at Mt Hagen Police Station cells and subsequently at Baisu Corrective Institute. He was detained for a period of one month and later released on bail following a successful application to the Court by his lawyers on 15th November 1999. He appeared six times at Mt Hagen District Court for committal proceedings while in detention and out on bail. On the sixth occasion, on 7th March 2000, his lawyers made a no case submission and the police conceded to the application and withdrew the charge. He was accordingly discharged by the Court.

6. After the ordeal, he is bitter towards policemen and despises them every time he sees them. People in his village hold a very low opinion of him. They view him as a criminal, thief and corrupt person. He out-rightly denied the allegations and even told policemen involved in arresting and charging him on numerous occasions that he was innocent but his repeated pleas fell on deaf ears. He spent K1,000.00 for legal costs and more than K5,000.00 for associated costs. As a result of the charge, he was suspended from work without pay. This has greatly affected the welfare and well being of his family. Their private family motor vehicle, a Mazda T3500 truck was damaged by the police as they alleged that it was used to transport the stolen goods to Mun village. This forced him to sell it for spare parts.

False imprisonment

7. The first claim for general damages is based on false imprisonment. I said in Jack Topo -v- Kelly Kaman & The State (2009) 3773 that, false imprisonment consists of unlawful arrest and unlawful detention of a person against his will. This is because an arrest may lead to detention though in some circumstances, there may be no arrest but only detention: see also Ronald Alexander McKenzie -v- The State (1998) SC596.

A person arrested and detained unlawfully will be entitled to general damages for the pain and suffering, and loss of amenities including humiliation, distress and hardship if he is able to prove his damages. This is because general damages is intended to compensate him for the pain and suffering, humiliation, distress and inconvenience caused by the unlawful actions of the tortfeasors. Persons who are deprived of their personal liberty as a result of been unlawfully arrested and detained have to be compensated for the shock and distress caused by the tortfeasors.

8. The purpose of an award of general damages is to compensate a person; to put that person as far as possible in the same position he or she could have been had he or she not been deprived of his or her personal liberty because of another person’s wrongful conduct. General damages are intended to be neither a reward nor a penalty: see Martha Limitopa & Poti Hiringe -v- The State [1988-89] PNGLR 364; Losia Mesa -v- Gari Baki as Commissioner of Police & The State (2009) N3681 and James Gunambo & Anor -v- Sergeant Thomas John Upaiga & The State: WS No 1321 of 2001 (Unnumbered & Unreported Judgment of 25th January 2010).

9. Bearing in mind that, in civil proceedings plaintiffs still bear the onus of proof even though default judgment is entered against the defendants, hence liability is not an issue, in the present case, can it be said that the plaintiff has proven his damages based on his evidence and that of his two witnesses? To answer this question, I have to look at the evidence presented thus far. The plaintiff’s evidence is that, he was apprehended, arrested and charged by police under the control and direction of the first defendant for committing an alleged offence of break and entry and stealing of goods worth K14,916.77 from Steamships Hardware building in Mt Hagen town under section 398(a)(i) of the Criminal Code, Ch 262. He was detained at Mt Hagen Police Station cells and subsequently, at Baisu Corrective Institute.

10. However, his evidence is unclear as to when he was arrested but it appears it may have been at the same time when he was apprehended, that is, on 28th September 1999. There is...