WS. NO.1488 OF 2011; Glen Otto Kipahi v Steven Nambos, James Yoko, Jeffery Nomino, Bai Wgula and Fred Mathew and Joseph Tondop – Metropolitan Police Commander of National Capital District, and Tom Kulunga – Acting Commissioner of Police, and Isaac K. – Chief Fire Officer of Papua New Guinea and the Independent State of Papua New Guinea (2020) N8437

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, DCJ
• Judgment Date: 29 July 2020
• Court: National Court
• Citation: (2020) N8437
• Year: 2020
• Judgement Number: N8437

Full Title: WS. NO.1488 OF 2011; Glen Otto Kipahi v Steven Nambos, James Yoko, Jeffery Nomino, Bai Wgula and Fred Mathew and Joseph Tondop – Metropolitan Police Commander of National Capital District, and Tom Kulunga – Acting Commissioner of Police, and Isaac K. – Chief Fire Officer of Papua New Guinea and the Independent State of Papua New Guinea (2020) N8437

National Court: Kandakasi, DCJ

Judgment Delivered: 29 July 2020

N8437

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO.1488 OF 2011

BETWEEN

GLEN OTTO KIPAHI

Plaintiff

AND

STEVEN NAMBOS, JAMES YOKO, JEFFERY NOMINO, BAI WGULA

First Defendants

AND

FRED MATHEW

Second Defendant

AND

JOSEPH TONDOP – METROPOLITAN POLICE COMMANDER OF NATIONAL CAPITAL DISTRICT

Third Defendant

AND

TOM KULUNGA – ACTING COMMISSIONER OF POLICE

Fourth Defendant

AND

ISAAC K. CHIEF FIRE OFFICER OF PAPUA NEW GUINEA

Fifth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Sixth Defendant

Waigani: Kandakasi, DCJ

2019: 13th September

2020: 29th July

DAMAGES – Assessment of –malicious prosecution – essential elements – essential element of malice or the defendants being actuated by ill-will not pleaded - default judgment – effect of – defective claim and with no proper foundation for assessment of damages – consequences – no assessment and award of damages for all claims based on malicious prosecution

DAMAGES – Personal injuries – gunshot to left thigh – 15% residual disability – comparable verdicts – damages assessed at K20,000.00.

DAMAGES – Constitutional rights breach – breach with the use of a gun to injure plaintiff – K8,000.00 awarded.

Facts

The Plaintiff was apprehended at the scene of an armed robbery, arrested, charged, tried, convicted and sentence for armed robbery. His conviction was based on circumstantial evidence. On appeal, the Supreme Court overturned his conviction and sentence and had him acquitted. That was on the basis that the learned trial Judge did not give any consideration to inconsistencies in the States evidence and the Plaintiff’s own sworn testimony. Following his acquittal, the Plaintiff issued civil proceedings claiming various heads of damages for malicious prosecution and personal injuries. On account of the defendants not filing and serving their defence within time, default judgment was entered for the Plaintiff with damages to be assessed. At the assessment of damages hearing, the Defendants argued against the award of any damages on public policy and criminal justice considerations. In the alternative, the defendants also argued for damages that are supported by proper case precedent.

Held

1. The law on the effect of the entry of default judgment is clear. A survey of the authorities on assessment of damages after entry of judgement on liability in default of a defendant’s defence, clearly show the following:

(a) The default judgement resolves all questions of liability in respect of the matters pleaded in the statement of claim.

(b) Any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take issue on liability.

(c) In the case of a claim for damages for breach of contract, such a judgement confirms there being a breach as alleged and leaves only the question of what damages necessarily flow from the breach to be resolved.

(d) The plaintiff has the burden to produce admissible and credible evidence of his alleged damages and if the Court is satisfied on the balance of probabilities that the damages have been incurred, awards can be made for the proven damages.

(e) A plaintiff is only entitled to lead evidence and recover such damages as may be pleaded and asked for in his statement of claim: See Coecon Limited (Receiver/Manager Appointed) v. The National Fisheries Authority of Papua New Guinea (2002) N2182; PNGBC v. Jeff Tole (2002) SC694 and William Mel v. Coleman Pakalia (2005) SC790.

(f) Additionally, the trial judge should make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity;if it is reasonably clear what the facts and cause of action are,liability should be regarded as proven but if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise, the judge should inquire further and revisit the issue of liability: See William Mel v. Coleman Pakalia (supra) and ; Jacinta Albert v. Joseph Aine, The State &Ors (2019) N7772.

2. Malicious prosecution is a tort at common law and by its very name, malicious prosecution asserts an abuse of process with malice which has a very long history that has developed over the past millennium focused on refining two key factors, namely, improper institution of criminal proceedings and malice, whilst trying to balance the interests of the accused, the victim, and law enforcement.

3. Lord Holt CJ’s decision in 1698 in the matter of Savile v. Roberts, (1968) 5 Mod 405; 12 Mod 208; 1 Ld Raymond 374 “established the guidelines that have become the modern English Rule” of common law on malicious prosecution claims: See Willers v. Joyce and Anor [2016] UKSC 43, per Lord Toulson with whom their Honours, Lady Hale and their Lordships, Kerr, Wilson and Clark agreed.

4. Modern malicious prosecution theory and practice allows for balancing of four competing policy interests. These are namely; (1) the need to encourage honest accusers; (2) resolving litigation quickly and finally; (3) deterring groundless suits; and (4) compensating victims of groundless suits or prosecution. Through these developments it has now become clearly established that there are four critical elements that must be met to succeed in a modern-day malicious prosecution claim and these are:

(a) institution of a criminal proceeding by the defendant;

(b) termination of the criminal proceeding in the plaintiff’s favour;

(c) a lack of probable cause to support the charges; and

(d) malice: See Demba Kalo v. Cornnie Akaya and Sam Inguba, Commissioner of Police and The Independent State of Papua New Guinea (2007) N3213 and Londe Tole v. Joe Kongi (2019) N7728

5. The fourth requirement of malice has been defined as a requirement for a plaintiff in a malicious prosecution case to plead and then prove by appropriate evidence the defendant’s subjective state of mind at the relevant time of the alleged malicious prosecution. This has to do with the defendant’s intention or purpose behind his or her initiation for the prosecution. That intention or purpose must be for reasons other than bringing a criminal offender to justice. Clearly, this is more than merely a probable cause. Thus, pleading and establishing this element is a critical component for a claim in malicious prosecution.

6. The law and practice on malicious prosecution as developed and applicable in England has been adopted and applied in many jurisdictions in the Commonwealth and other jurisdictions, even America and also in PNG under Constitution Schedule 2.2.

7. In the present case, the Plaintiff’s pleadings did not plead the essential elements of malice, lack of probable cause and how the State was liable for the malicious acts of the First and Second Defendants by reason of which, the pleadings and the foundation for the Plaintiffs claim was defective.

8. The entry of default judgment did not correct the defect in the foundation for the Plaintiff’s claim and hence, no damages could be assessed and allowed for all of the claims that were based on the claim of malicious prosecution.

9. The claim for damages for personal injuries and breach of constitutional rights associated to the personal injuries had foundation in the pleadings and therefore an award of K20,000.00 and K8,000.00 were respectively made for personal injuries and breach of constitutional rights with costs and interest at 8% added.

Cases Cited:

Papua New Guinea Cases

Glen Otto Kapahi v. The State (2010) SC1023.

Jacinta Albert v. Joseph Aine, The State &Ors (2019) N7772.

PNGBC v. Jeff Tole (2002) SC694.

William Mel v. Coleman Pakalia (2005) SC790.

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

Elizabeth Kimisopa v. Darryl Kamen (2016) SC1554.

Sarea Soi v. Daniel Korimbao & Ors (2018) N7081.

Wyatt Gallagher Bassett (PNG) Ltd v. Benny Diau [2002] PNGLR 477.

Moresby Claim Adjustment Partners Ltd v. Wyatt Gallagher Basset (PNG) Ltd [2003] PNGLR 140.

Demba Kalo v. Cornnie Akaya and Sam Inguba, Commissioner of Police and The Independent State of Papua New Guinea (2007) N3213.

Londe Tole v. Joe Kongi (2019) N7728.

Paul Paraka v. Eastern Highlands Provincial Government (2005) SC809.

William Yano Kapi v. Kambang Holdings Ltd (2011) N4451.

Pius Nui v. Senior Sergeant Mas Tanda (2004) N2765.

Kolta Development Ltd v. The State (2013) N5954.

Dalin More v The State and Chief Inspector Jim Onopia, Sergeant Joe Luage, Constable Dala Mentai and Constable Miamel Dage (1998) N1736l.

In the Application by Kunzi Waso [1996] PNGLR 218.

Terry Mapu v. John Kariap (2019) N7697.

Ngants Topo v. The State (2008) N3478.

Milia Yongole Kuri v. Walter Kapty & NHC, WS. No. 1775 of 2004, 20.02.08.

Kolokol v. Amburuapi (2009) N3571.

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