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Waniholo v Tokam, Commissioner of Police [1997] PGNC 3; N1563 (27 January 1997)

Unreported National Court Decisions

N1563

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 1045 OF 1995
JASHIHE WANIHOLO
v
HENRY TOKAM, Commissioner of Police
And:
THE STATE

Waigani

Salika J
16 December 1996
27 January 1997

ACTION FOR WRONGFUL ACTS OF POLICEMAN - Liability of State - members of Police force and Servants or agents of State. Police - Wrongful Act - Assault of a person being arrested - Breach of Constitutional Rights - Award for general and exemplary damages.

Cases Cited:

David Wari Kofowei v Augustine Siviri and Others (1983) PNGLR 449

Counsels:

JP Wal for the Plaintiff

F Damem for the Defendant

27 May 1997

SALIKA J: The Plaintiff sues for damages for personal injuries he sustained at the hands of policemen. Liability has been determined. A default judgement was entered against the defendant on the 29th February 1996 and since then the defendants have not moved to set aside the default judgement. Thus the matter is now before the court for assessment of damages only.

The facts of the matter are that the plaintiff lives in the he domestic quarters next to Henry Kuimos house at Boroko East. On the 9th of January 1995 there was a break and enter into Mr Kuimo’s house and goods were stolen from therein. The plaintiff was suspected by Mr Kuimo. Mr Kuimo reported the breaking and a policeman Paol Palik went to investigate the incident but was stopped by Mr Kuimo. On the 14th of January 1995 Paol Paik went again to investigate. However instead of investigating the breaking he and Mr Kuimo and Mr Kuimo’s brother drank beer until late in the afternoon. When under the influence of alcohol they set upon the plaintiff and dragged him to Mr Kuimo’s car and drove him to Gordons Police Statiion. On the way to the Police Station Paol Palik and Mr Kuimo’s brother assaulted the plaintiff. When they arrived at the Gordons Police Station Paol Palik lifted the plaintiff and threw him on the cement floor. While there Paol Palik and other policemen further assaulted the plaintiff.

The plaintiff suffered the following injuries:

(a) a broken index finger;

(b) two broken teeth;

(c) a deep cut on the forehead;

(d) dislocation of shoulder joints;

(e) heavy bleeding from the nose; and

(f) cut on the face.

The plaintiffs pleas to be taken to the hospital were ignored and he was locked up in the cells. After a brief mention at the Boroko District court he was remanded at the Bomana Corrective Institution. Upon remand at Bomana he was seen by Medical orderly Pirika Kekea who confirmed the injuries sustained by the plaintiff. The plaintiff was able only to eat soft food and water for 2 months and after the two months his injuries healed up. No major permanent injuries were sustained by the plaintiff except for the two broken teeth and scar on the forehead.

The plaintiff claims general, exemplary and special damages for the injuries he sustained and for breach of his constitutional rights. He also claims interest and costs.

The claim is based on a similar claim made in the National Court in the leading case of David Wari Kofowei v Augustine Siviri and Others [1983] PNGLR 449. The plaintiff relies on the authority of that case to press his claim. For some unknown reason Paol Palik has not been named as a defendant in the he proceedings. This is another of those cases where a citizen has fallen prey to a bunch of “thugs”, who time and again appear to think they are above the law. Nobody is above the law including members of the police force who should instead be upholding and enforcing the law in an objective manner. Sadly though, the citizens and the community at large are suffering at the hands of a poorly disciplined police force. The members of the police force have no authority under the law to assault any person when he is arrested. They are to effect arrest in a firm but humane manner. If for some reasons the person being arrested resists arrest the arresting officer may use reasonable force to effect the arrest. That is the only exception when some force may be used. They have no right to abuse a person and talk to him in a rough, angry and heavy handed manner. I am aware they are often provoked and being human beings go through trying situations. However that is why they are trained, to keep their cool and have a level head. The State is paying huge amounts of money each year because of instances of this nature. The people of this country are fed up with the attitude and the illegal acts of their so called law enforcing agency.

The Commissioner of Police is being sued because he is the person directly responsible and answerable for all official activities either collectively or individually of the police personnel throughout the country. The State is being sued because members of the Police force are servants or agents of the State and is being sued on vicarious liability.

In David Wari Kofowei v Augustine Siviri and Others [1983] PNGLR 449 (Supra) the trial judge assessed damages for assault at K3,800. The assaults in that case were that he was forced to stand on one leg with his arms raised in the air by long periods, kicked in the knee, being hit on the back of his neck, being burnt on the lips with a lit cigarette, being slapped on the face, punched in the chest and being hit with a stick on his penis. The assaults here are similar in that he was kicked and punched. As a result of that assault he lost his two teeth.

The Plaintiff also claims general damages under the Arrest Act. The manner and the circumstances under which the plaintiff was arrested in my view is a breach of s. 18 of the Arrest Act. While the damage is awarded separately in the Kofowei case I am of the view that it be lumped together in the general damages category.

The plaintiff further claims general damages for breach of his Constitutional rights under S. 42, 36 and 37 of the constitution. The Constitutional rights of individuals are fundamental to each person and those rights should be rigidly and zealously guarded by the States law enforcing agencies like the police force. The police force is empowered under the Constitution to preserve peace and good order and to enforce the law in an impartial and objective manner. Sadly though that is not happening in this country. Each year the State pays thousands of Kina because the Constitutional Rights of people are breached. Nothing seems to be deterring the members of the police force from continually repeating the same mistakes. The plaintiff in this case was entitled to be humanely treated as provided for under the Constitution. If he was to be arrested and charged, there is no need for the policeman involved to cause grievous body harm to him.

In this case his finger was broken and two of his teeth were knocked out. His face and body was swollen from the assaults be received. Having said those things I intend to have this head of damages included under the general damages category. I assess general damages to be K14,000.00

The plaintiff further claims exemplary damages. Exemplary damages are awarded at the discretion of the Court. In this case taking into account the circumstances of the case, I am minded to award K1,000.00 in exemplary damages. There was absolutely nothing the plaintiff did to warrant such an attack on this person.

No special damages have been proved.

In summary the following damages are awarded:

I further award him interest and costs.

Lawyer for Plaintiff: Joe Wal Lawyers

Lawyer for Defendant: Solicitor General