N8859

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1269 OF 2017

BETWEEN:
DAVID LANGAS
Plaintiff

AND:
RESERVE CONSTABLE DAVID KAIKU
First Defendant

INSPECTOR KARIVA
Second Defendant

AND:
SENIOR SERGEANT KESAMBI
Third Defendant

AND:
POLICEWOMAN CONSTABLE JOSEPHINE SIPUA
Fourth Defendant

AND:
CHIEF INSPECTOR KESAMBI
Fifth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Lae: Dowa J
2021:  05th & 15th March

DAMAGES – assessment of damages after entry of default judgment – plaintiff arrested by first defendant and locked up in police cell without laying charges and released the next day – plaintiff claims damages under different heads of damages – issues are what is the effect of default judgment, and what damages is the Plaintiff entitled to – plaintiff still has onus to prove his claim even if default judgment is entered – plaintiff is awarded General damages, and damages for breach of his Constitutional rights, special damages and exemplary damages with interest and costs.  

Cases Cited:
Papua New Guinea Cases

Albert v Aine (2019) N7772
Alfred v Kapi (2020) N8467
Coecon Ltd (Receiver Manager) v The National Fisheries Authority of PNG (2002) N2182
Enaia Lanyat v State (1996) N1481 
Jonathan Mangope Paraia v The State (1995) N1343
Kinsim Business Group Inc v Joseph Homwafi (1997) N1634
Kombea v Peke (1994) PNGLR572 
Obed Lalip v Fred Sekiot and The State (1996) N1457
Peter Wanis v Fred Sikiot and The State (1995) N1350
PNGBC v Jeff Tole (2002) SC 694 
Samot v Yame (2020) N8266
William Mel v. Coleman Pakalia (2005) SC790  
Yooken Paklin v The State (2001) N2212

Overseas Cases

Livingstone-v-Rawyards Coal Co (1908)5App Cas 25(HL)

Counsel:

M. Karu, for the Plaintiff
B. Tomake, for the Second, Third, Fourth, Fifth & Sixth Defendants

JUDGMENT

15th March, 2021

1.	DOWA J:	This is a judgment on an assessment of damages of the Plaintiffs claim.  Default judgment was entered for the Plaintiff on 19th December 2019.

FACTS

2.	The Plaintiff alleges, on 22nd April 2014 he was arrested by the first Defendant, a policeman attached to the Lae police station, Lae in the Morobe Province, and placed in the police cells for one day. The reason for the arrest was that the Plaintiff arranged for her daughter, Talio David, to desert her matrimonial home in Lae to travel to Port Moresby. The plaintiff was directed by the defendants for the return of her daughter to her husband, one Kilamu John, and failing to do so would result in his continuous detention at the police cells. The Plaintiff arranged for the return of the daughter and he was released the next day. It is alleged the arrest and detention was for no lawful reason.  The Defendants conduct therefore amounted to a breach of the Plaintiffs rights under sections 42(1) and 37 of the Constitution and sections 3 &18 of the Arrest Act.

3.	The Plaintiff filed the current proceedings to recover damages.  Although the Defendants were served, they defaulted in filing their Defence which resulted in the judgment by default.

4.	Trial on assessment of damages was conducted on 5th March 2021, with submissions on evidence.  I reserved my ruling which I now deliver.

	ISSUES

5.	The issues for consideration are:

a)	What is the effect of default judgment, and
b)	What damages is the Plaintiff entitled to.

6.	The law on the effect of default judgment is settled in this jurisdiction.  A trial Judge must satisfy himself with the principles summarised in the cases; Coecon Ltd (Receiver Manager) v The National Fisheries Authority of PNG (2002) N2182, PNGBC v Jeff Tole (2002) SC 694, William Mel v. Coleman Pakalia (2005) SC790,  and Albert v Aine (2019) N7772.

7.	In Albert v Aine, Kandakasi DCJ at paragraphs 7 & 8 of his Judgment said:
 “7. 	Fourthly, the law on the effect of the entry of default judgment is clear. In Coecon Limited (Receiver/Manager Appointed) v. The National Fisheries Authority of Papua New Guinea (2002) N2182, I summarised the principles that govern an assessment of damages after the entry of default judgement in the following terms:
“A survey of the authorities on assessment of damages after entry of judgement on liability mainly in default of a defendant’s defence, clearly show the following:
1.	The judgement resolves all questions of liability in respect of the matters pleaded in the statement of claim.
2.	Any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability.
3.	In the case of a claim for damages for breach of contract as in this case, such a judgement confirms there being a breach as alleged and leaves only the question of what damages necessarily flow from the breach.
4.	The plaintiff in such a case 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.
5.	A plaintiff in such a case is only entitled to lead evidence and recover such damages as may be pleaded and asked for in his statement of claim.”

8.	The Supreme Court in PNGBC v. Jeff Tole (2002) SC694 adopted and applied this summation of the principles. Later, the decision of the Supreme Court in William Mel v. Coleman Pakalia (2005) SC790, did the same. Additionally, however, the Court in that case went further by noting several decisions of the National Court in which the principles were adopted and applied. It then added the following:

“Turning back to the issue raised above as to the role of the trial judge after entry of default judgment, we consider the following to be the correct approach:
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;
only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability.” 
9.	I adopt and apply the above principles to ensure that default judgment is in order. In the present case, the pleadings are in order. The process of securing default judgment has been duly followed and liability has been properly resolved by default judgment. I can proceed with the assessment of damages.
EVIDENCE

10.	The Plaintiff relies on the following affidavit evidence:

a)	Affidavit of Talio David sworn 30 /10 / 2020 and filed 2/11/2020.
b)	Affidavit of Mary David sworn 30/10/2020 and filed 2/11/2020.
c)	Affidavit of Mary David sworn 30/10/2020 and filed 3/11/2020.

11.	Briefly, the Plaintiff’s evidence is that he was arrested by Reserve Constable David Kaiku, a policeman based in Lae, for no good reason. The evidence shows, one Kilamu John is a de facto husband of the Plaintiff’s daughter, Talio David. It is alleged that Mr Kilamu John lodged a complaint with the Lae police to arrest the Plaintiff for taking his wife away from him and sending her to Port Moresby. In the execution of the complaint, the first defendant arrested the Plaintiff and placed him in the cells and told him that he will not be released unless and until his daughter was brought back from Port Moresby and returned to the husband. The Plaintiff protested but the police personnel refused to release him and was detained at the police cells. The Plaintiff was then released the next day after his daughter returned from Port Moresby and went back to her husband. The Plaintiff was not charged with an offence. 

12.	The Defendants rely on the following affidavit evidence:

a)	Affidavit of Reserve Constable David Kaiku sworn 4/08/2020 and filed 13/08/2020.
b)	Affidavit of Josephine Sipua sworn 4/08/2020 and filed 13/08/2020.
c)	Affidavit of Kiweri Kesambi sworn 4/08/2020 and filed 13/08/2020.
d)	Affidavit of Razi Take sworn 4/08/2020 and filed 13/08/2020.

13.	The defendant’s evidence is this. The first defendant admits the arrest and detention of the Plaintiff after he received a complaint from Kilamu John. He says he directed the Plaintiff to arrange for the return of his daughter to her husband and until that is done, the Plaintiff was to be detained. He released the Plaintiff the next day when the daughter returned to her husband. The Second Defendant, Josephine Sipua is a senior officer. She says she is aware of the complaint lodged by Kilamu John but was not aware that the Plaintiff was arrested and placed in the cells. The third and Fourth Defendants are very senior officers having served the police force over 30 years. Both testified that they were not aware of the arrest and detention of the Plaintiff and if made known to them of the circumstances of the arrest, they would have released the Plaintiff forthwith. 

Clearly the defendants have no defence and have offered no good reason for the detention of the Plaintiff. I will now proceed to assessing the amount for damages.  

	DAMAGES

14.	In respect of damages, the law is clear. Whilst the issue of liability is settled, the Plaintiff is still required to prove its damages with credible evidence.  Ref:  Yooken Paklin v The State (2001) N2212, Peter Wanis v Fred Sikiot and The State (1995) N1350, Enaia Lanyat v State (1996) N1481; Obed Lalip v Fred Sekiot and The State (1996) N1457; Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.

15.	In Samot v Yame (Supra), His Honour, David J referring to legal principles to be applied in assessing damages said this at paragraph 46 of his judgment:
“The Supreme Court in William Mel v Coleman Pakalia (2005) SC790 and the National Court decision of Cannings, J in Steven Naki v AGC (Pacific) Ltd (2006) N5015 summarise or identify a number of legal principles that are applicable in assessing damages where liability is established either following a trial or after the entry of default judgment and these are:
•	The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)

•	Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)

•	The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)

•	The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)

•	If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)

•	Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)

•	The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)

•	The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)

•	The person who has been wronged has a duty to mitigate their losses; though it is the defendant who has the onus of proving failure to mitigate (Dia Kopio v Employment Authority of Enga and Others (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182, National Court, Kandakasi J.)”

16.	I will adopt and apply these principles in the present case when considering each head of damages sought by the plaintiff. In the statement of claim the Plaintiff is seeking various heads of damages including special damages.
 
17.	Lawyers for the parties correctly stated the principles governing the law on damages. Any damages in monetary terms be such amounts which put the injured party in the same position as he was before the injury or loss suffered.
 
18.	In Livingstone-v-Rawyards Coal Co. (1908)5 App Cas 25(HL), Lord Blackburn said:
“where injury is to be compensated by damages, in settling the sum of money to be given for damages, you should as nearly as possible get at that sum of money which will put the injured party or who has suffered in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation”
19.	This principle of law is further qualified in the case of Kinsim Business Group Inc-v Joseph Homwafi, John Kalaut & State (1997) N1634. At page 6 of his Judgment, His Honour Bidar AJ said that the principle referred to as Restitutio In Integrum is not absolute. It is qualified to the extent that the injured party gets damages which naturally arise from the wrong done, not those which are too remote; and secondly the injured party has a duty to mitigate his loss.  
The Plaintiff has the burden of proving his claim, with appropriate evidence.
GENERAL DAMAGES
20.	The first head of damages is general damages. Mr. Karu, of counsel for the Plaintiff proposed a sum of K1,000.00 in his extract of submission. He referred to the decision in Alfred v Kapi (2020) PGNC, N8467. Mr. Tomake, Counsel for the State submits the same figure of K 1,000.00 for this head of damages. I note Mr Tomake’s submission appears to include damages for breach of constitutional rights. I intend to consider this head of damages separately. 

21.	General damages are for pain, suffering and loss of amenities. In Kerr -v- Motor Vehicles Insurance (PNG) Trust (1979) PNGLR251, the Supreme in providing a guide on assessment of general damages, held that: 
“In assessing general damages for personal injuries under the heading, pain and suffering, loss of amenities etc., the assessment should be made having regard to the prevailing condition of the plaintiff at the time of the injury, and the general standards prevailing in the community.”
22.	So, what is the reasonable and fair compensation. In the present case the plaintiff was not assaulted or ill-treated by police personnel. He was not charged with any offence and therefore no malicious prosecution. However, he was arrested and detained for a day. He suffered embarrassment, anxiety, and inconvenience. There is evidence that his family also suffered anxiety and inconvenience. It was a deliberate act by the defendants on an innocent man. Whilst this case is less serious than the case of Alfred v Kapi Peke, where the Plaintiff who was unlawfully detained for four days was awarded K4,000.00 I am prepared to make an award for K 2,000.00 for general damages.

BREACH OF CONSTITUTIONAL RIGHTS 
23.	The Plaintiff is seeking damages for violation of his constitutional rights in the following:

a) 	Right to full protection of the law – section 37
b) 	Freedom from inhuman treatment – section 36
c) 	Liberty of a person - section 42
d) 	right to be treated with human dignity. – section 37 (17)
e)       breach of the Arrest Act

24.	Under this head of damages, counsel for the Plaintiff submitted a global sum of K 25,000.00. The amount claimed is a sum of various figures submitted for various violations of Constitutional rights at the average sum of K 5,000.00 per breach.  Mr Karu referred to the decisions in Alfred v Kapi (supra) and Kolokol v Amburuapi (2009) PGNC in support of his submissions. However, I note the pleadings are not clear. The cardinal law underpinning civil litigation is that pleadings drive the evidence. In the present case, even the evidence falls short.

25.	Counsel for Defendants submitted firstly that the Plaintiff did not specifically plead a claim for damages for breach of constitutional rights. Secondly Mr Tomake submitted that any award for alleged breach of constitutional rights be restricted only to unlawful detention, that is a breach under section 42 of the Constitution and nothing more. The defence counsel relies on a string of cases decided in this jurisdiction that suggest that a sum of K 1,000.00 be awarded for every day spent in unlawful detention. The defence counsel however considering the peculiar circumstances of this case submitted a sum of K 5,000.00 be awarded.
 
26.	From the pleadings and evidence provided the constitutional breaches for right to freedom from inhuman treatment and protection of the law have not been established.
 
27.	As for violations against his freedom and privacy, I am of the view that there was a breach. The plaintiff was taken away from his place of privacy, comfort and security. His freedom was taken away for a day. So, how much should I award for breach of constitutional rights. I do not agree with counsel for the Plaintiff that there was a series of breaches warranting an award of K25,000.00. On the same token, I do not agree with defence counsel that a sum of K 1,000.00 or any figure be fixed for every day spent in custody. In my view, the amount of damages to be awarded for unlawful detention and for that matter, for other violations of the constitution be reasonable amounts depending on the seriousness of each case.
 
28.	In the present case the Plaintiff submits that separate awards be made for unlawful detention and for breach of constitutional rights. In my view, unlawful detention is a breach of the Plaintiff’s constitutional right and therefore, an award for unlawful detention is in fact an award for violation of the Plaintiff’s Constitutional right and therefore is sufficient. In terms of figures, I refer to the case of Saa v Yarra & State (2014) N5700, where the court awarded K 6,000.00 for breach of constitutional rights. That was decided more than six years ago. In my view there are special circumstances in the present case. The Plaintiff was detained with a threat that if he did not arrange for the return of his daughter to the husband, the detention would continue. This amounts to passing of judgment and execution thereof without trial. To make it worse, the facts do not support a legitimate reason for the detention in the first place. For these reasons, I am considering an amount to exceed K 6,000.00 but less than K 25,000.00.  I am of the view that K 8,000.00 is a reasonable amount, and I will award same. 
        	SPECIAL DAMAGES
29.	The Plaintiff submitted the sum of K 622.00 for special damages. The defendant concedes to the amount. I will therefore allow the sum claimed in full.
           EXEMPLARY DAMAGES
30.	The Plaintiff claims exemplary damages at K10,000.00. This head of damages is punitive in nature. The Court has a discretion whether to award damages under this head of damages and to decide on whether the state is vicariously liable to pay. See Abel Tomba v The State. The evidence clearly shows the first defendant, without a lawful reason, detained the Plaintiff against his will. Whilst the first defendant committed the tortious act in the course of his duty, he failed to apply his judgment properly. If he sought counsel from his superiors like the third and fourth defendants, he would probably have released the Plaintiff. I find this is an appropriate case for an award for punitive damages against the first Defendant only. As to the amount, I do not agree with the Plaintiff’s submission that an award be made for K10,000.00.  The cases referred to by counsel are more serious than the present case. On the other hand, the figure of K 1,000.00 submitted by counsel for the defendants is far too low. I am of the view that the sum of K 2,000.00 is appropriate in the circumstances and award same.
       
   AGGRAVATED DAMAGES
31.	The Plaintiff seeks aggravated damages. The Parties refer to the decisions in the cases, PNG Aviation Services v Somare (2000) SC658 and Latham Peni (1997) PNGLR435 where the court held that aggravated damages can be awarded where the defendant’s conduct is improper or unjustifiable. Whilst I have found the first defendants conduct to be unjustifiable, I do not consider it appropriate to make a separate award. Awards made for various heads above is sufficient. There shall be no award made under this head of damages. 
          INTEREST
32.	The plaintiff submits interest be calculated at 8%. The defendant submits interest be charged at 2% pursuant to Judicial Proceedings (Interest on Debts & Damages) Act 2015. Section 4 provides any award for interest against the state shall not exceed 8%. This gives the discretion to the court to fix a rate up to 8%.  I am inclined to award interest at 8%. 
COSTS
33.	The Plaintiff sought an order for cost.  Cost shall be awarded to the Plaintiff on a party/party basis, to be taxed, if not agreed.
SUMMARY
34.	In summary the following shall be awarded:

a) 	General damages                       	 K   2,000.00
b)      	Constitutional rights                  	 K   8,000.00
c)        Special damages                         K      622.00
d)        Exemplary damages                   K    2,000.00

                   TOTAL                              K 14,622.00  

35.	I add 8% interest on K14,622.00 per annum since filing of writ (27/11/17) to date of judgement (15/03/21), Interest for the last 1173 days amount to K3,759.26. The total Judgment sum awarded is K18,381.26.
 
36.	The first, second, third and fourth defendants were performing their official duties. In my view the sixth defendant is therefore vicariously liable for the actions of the first, second and third defendants and therefore, shall settle the judgment except for the exemplary damages. 

ORDERS
37.	The formal orders of the Court are:

1.	Judgment be entered for the Plaintiff in the sum of K 18,381.00
2.	The State shall pay the Plaintiff the sum of K16,381.26
3.	The First Defendant shall pay the Plaintiff K 2,000.00.
4.	The State shall pay the Plaintiff cost to be taxed, if not agreed.
5.	Time be abridged.	
_____________________________________________________________
Daniels & Co Lawyers:	Lawyers for the Plaintiff
Solicitor General:	Lawyers for the Second, Third, & Fourth Defendants