N9662
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) 126 OF 2016

OKOMAISA YAMATOMATOM
Plaintiff

V

CHIEF SERGEANT ULAGIS MANTU
First Defendant

FIRST CONSTABLE EDDIE NAHARA
Second Defendant

FIRST CONSTABLE FORBES BANASI
Third Defendant

FIRST CONSTABLE JEFFREY HOHENG
Fourth Defendant

GARI BAKI, POLICE COMMISSIONER
Fifth Defendant

MICHAEL WAIPO, COMMISSION FOR CORRECTIONAL SERVICE
Sixth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

Waigani: Narokobi J
2022: 12th May

HUMAN RIGHTS – Constitution, s 57 (enforcement of guaranteed rights and freedoms)– Whether plaintiff’s human rights were violated – s 32, Right to freedom – s 36, Freedom from inhuman treatment- s 37, Protection of the law – s 41 – Proscribed acts - s 42, Liberty of the person - appropriate compensation under s 58(2) of the Constitution.

The Plaintiff claims that his human rights under the Constitution were violated when he was assaulted by the police and kept in the dark cell at the maximum-security division for 180 days as a method of torturing him. He was a remandee at the time. The Plaintiff claims his rights under ss 32, 36, 37(3), 37(17), 37(18), 41 and 42 of the Constitution were violated by the Defendants. 

Held:
 
(1)	The Plaintiff’s factual allegations in the statement of claim and deposed to in his affidavit as to what he suffered are proven on the balance of probability. There was no Defence filed by any of the Defendants and no affidavit filed rebutting the Plaintiff’s evidence, serious as the allegations were. 

(2)	The First to the Fourth defendants breached the Plaintiffs right to freedom under s 32(2) of the Constitution. This was when he was apprehended at his marketplace and stopped from conducting his money-lending business. The Plaintiffs livelihood was forcefully taken away from him.

(3)	The evidence contained in the Doctor’s report was that the Plaintiff had several medical conditions including chronic hypertension. The fact that the Plaintiff was forcefully removed without regard to his underlying medical conditions which subsequently led to his impaired vision from the untreated high blood pressure, were actions that were harsh and disproportionate to the requirements of the case. Consequently, the Plaintiff’s rights under s 41(1) of the Constitution was breached by the Defendants (Morobe Provincial Government v Kameku (2012) SC1164 considered).

(4)	The Plaintiff’s rights under s 37 of the Constitution were breached in the following instances: 

•	The Plaintiff was detained for six months without a court appearance, and this was contrary s 37(3) of the Constitution.
•	 The Plaintiff was assaulted and kept in maximum security was inhumane treatment contrary to s 37(17) of the Constitution.
•	Being locked up in a maximum security was contrary to being treated as a remandee and instead he was treated as a convicted prisoner, and this is in violation of s 37(18) of the Constitution.
 
(5)	The Plaintiff’s rights under s 42 of the Constitution was breached by the Defendants in the following instances:
 
•	Did not allow him to communicate with this family members and a lawyer. He was locked in a maximum security for six (6) months and not brought to court.
•	He was not afforded an opportunity to apply for bail when he was locked up in maximum security.

(6)	The Plaintiff was detained in a separate confinement for no good and identifiable reasons and it was in breach of s 108(1) of the Correctional Services Act which provides for separation of detainees. A separate award of damages for each day in maximum security was necessary adopting the approach of In re Ruben Micah - application for enforcement of human rights (2013) N5427.

(7)	The First, Second, Third Fourth and Sixth Defendants were acting in the course of duty and the State is vicariously liable for their actions.

(8)	The State chose to sanction terror as a means of carrying out police duties. For purposes of s 12(1) of the Claims By and Against the State Act 1996 the violence were egregious and continuous and exemplary damages was awarded.

(9)	The total judgment awarded is composed of the following items - breach of constitutional rights K49,000.00, exemplary damages K7,000.00, for unlawful confinement in maximum security K90,000.00, general damages for loss of use of arm K15,000, for loss of property K3,500.00. The total judgment sum to be paid by the State to the Plaintiff is therefore K164,500.00.

Cases Cited

Abel Tomba v The State (1997) SC518
Application for Enforcement of Human Rights, in re Namson Lamaning (2013) N5419
In re Ruben Micah - application for enforcement of human rights (2013) N5427
Kolokol v Amburapi (2009) N3571
Kuefa v Sunku (N4855) 2012
Kunumb v The State (2008) N3480

Statutes Cited

Claims By and Against the State Act 1996 
Constitution
 Judicial Proceedings (Interest on Debts and Damages) Act 2015
Wrongs Miscellaneous Provisions Act, Chapter 279

Counsel

R Awalua, for the Plaintiff
N Aiwara, for the Fifth, Sixth and Seventh Defendants

JUDGMENT

12th May, 2022

1.	NAROKOBI, J: The Plaintiff is an adult male person from Kaintiba of the Gulf Province. He is suing the State and their agents who are members of the Police, and of the seven Defendants the Sixth Defendant is the Commissioner for Correctional Services. 

Pleadings
 
2.	The Plaintiff pleads that the servants of the State, that is the six other Defendants were acting within the scope of their duty and cites ss 1(1) and (4) of the Wrongs Miscellaneous Provisions Act, Chapter 279. The Plaintiff also relies on s 247(2) of the Constitution and s 2 of the Claim By and Against the State Act 1996 to hold the State responsible, that is vicariously liable. 
 
3.	Additional provisions the Plaintiff relies on are ss 57 and 58 of the Constitution.  
 
4.	The Plaintiffs grievances started on 20 January 2010. He had given K140 to an acquaintance of a well-known convicted prisoner William Kapris on 11 January 2010. He was as a result accused of aiding and abetting William Kapris. From that suspicion, he was subjected to assault by the Defendants and incarcerated for a period of 377 days before he was released from Bomana Correctional Services.   
 
5.	As a result of this claim, he sued the Defendants for negligence and breach of his Constitutional rights. He claims the following of his rights was breached: 
 
•	Section 32 (Right to Freedom) 
•	Section 36 (Freedom from inhuman treatments) 
•	Section 37 (Protection of the law) 
•	Section 41 (Proscribed Acts) 
•	Section 42 (Liberty of the person) 
 
6.	By reason of these said claims the Plaintiff seeks to protect and enforce his rights under s 57 of the Constitution.  
 
7.	The First, Second, Third and Fourth Defendants have not filed a Notice of Intention to Defend nor a Defence. The Fifth, Sixth and Seventh Defendants through the Office of the Solicitor–General only filed a Notice of Intention to Defend but has not filed a Defence. 
 
8.	At the trial on liability the Plaintiff tendered one affidavit of himself, that is the affidavits of Okamaisa Yamatomatom filed on 22 July 2021. The Defendants have not filed any rebuttal affidavit material. 
 
Factual Allegations

9.	The following are details of how the Plaintiff was treated by the Defendants in the ordeal from which he has some to court. It is a summary of the evidence of the Plaintiff. 
 
11.	The Plaintiff was accused of aiding the escape of the renowned criminal, the late William Kapris and 11 other prisoners from Bomana and charged under s138(a)(5) of the Criminal Code. The Plaintiff was held in custody over a year to face that charge. 
 
12.	On 2 February 2011 the Waigani Committal court discharged the information and made orders for his release from custody. He was not given an opportunity for bail during his incarceration. 
 
13.	At this time of the Plaintiff’s detention, he was subjected to continuous abuses including assaults by fists, kicking by boots, hit by gun butts, iron rods and police batons, banging of his head on filing cabinets and punching holes in his ears with paper-punch machines by the First, Second and Third Defendants and also by members of the Correctional Services. 
 
14.	The Plaintiff was considered a very high-risk prisoner for lending K140 to person called Wilson. The police alleged that this K140 was used to assist William Nanua Kapris to escape from Bomana prison.  
 
15.	The Plaintiff says he was locked up at Bomana cell without food and water for two nights and denied visit by relatives. During these two nights he was beaten for hours by the First, Second and Third Defendants. 
 
16.	From Boroko cell, he was taken to Bomana and straight to the underground maximum security cell and detained for six months – 22 January 2010 to 27 July 2010. 
 
17.	The Plaintiff was denied access to medical treatment although he had sores and broken bones, He was denied any clean water for drinking and washing. He was not allowed to see a lawyer or visits by family members. He was on the verge of dying from the denial of medical attention, starvation, and lack of clean water. 
 
18.	The Plaintiff was not brought to court within a reasonable period and the court was misled into believing that he had escaped from custody while in fact he was locked up in the underground maximum security cell. The Plaintiff’s family were also lied to by the Sixth Defendant that he had escaped from Boamana and was at large. 
 
19.	When he was transferred to the main prison compound after six months of underground detention, he was malnourished and weak from starvation although the sores and broken bones had healed naturally without treatment. 
 
20.	During the two nights at Boroko cell, he was subjected to unimaginable assaults by the First, Second, Third and Fourth Defendants. The following was what he experienced: 
 
•	Punched, kicked, hit with gun butts and police batons and iron rods and his head was banged against filing cabinets and the walls.
•	 His ears were stapled, and he was burnt with cigarette butts. They threatened to make holes in his ears with paper punchers. 
•	Every police officer that was at the holding cell had an opportunity to hit him. 
•	He was denied food and visits by relatives. 

21.	The assaults did not stop at Bomana after he was transferred from the underground detention cell. The Correctional Services officers treated him badly as compared to other detainees and he was always subjected to interrogation almost on a daily basis coupled with assaults and threats of being taken away somewhere and killed.  

22.	The injuries that the Plaintiff suffered from the police assault include swelling and pain all over his body as he was not taken away to be medically treated. His left wrist had been dislocated and his left arm was fractured. He was not treated for these injuries. The effects of the assaults continue to this day, as he experiences pain when he does heavy work. 

23.	In 2014, after experiencing much pain, he consulted a doctor and was diagnosed of losing 50% use of his left arm. 
 
24.	After release from custody, he suffers nightmares, and is the subject of unwanted attention from the police who regularly check on him and take his market goods at their pleasure without his consent. This has led him to having a bad reputation from what he has undergone with the police. 
 
25.	At the time of the police raid of his area in Boroko, he was in the informal sector selling goods. He lost the following when he was arrested and unlawfully detained:

•	Cigarettes: K700.
•	Flex Cards: K1, 300.
•	Cash on hand: K1, 500.
•	Unrecovered loans: K4,020.
•	Loss of business at K150 per day: K56,550. 
 
26.	By reason of the matters deposed to by the Plaintiff he says his right under ss 32, 36, 37 and 42 of the Constitution was breached. 
 
27.	Let me state that although the Plaintiff pleads negligence, I gather from his submissions and the affidavit materials that his claim now is only for breach of his Constitutional rights. 

Issues 

28.	This is a trial on both liability and assessment of damages, and so the issues that I have determined are as follows:
  
•	Whether the Defendants are liable for breaching the Plaintiff’s Constitutional rights?
•	 If they are, who should be liable? 
•	If liability is established, how much should the Defendants pay the Plaintiff for breach of his rights?

Submissions 
 
29.	The Plaintiff submits that five of his Constitutional rights were breached - ss 32, 36, 37 and 42 of the Constitution. The Plaintiff says he has provided evidence to show how those rights were breached through his affidavit and the statement of claim. The Defendants have not filed a Defence nor any affidavit material to refute his claim. 
 
30.	The Plaintiff says that the allegations are serious, and the police officers named as Defendants should have made an attempt to refute the allegations by filing a defence and affidavit materials. They have not. For those reason the Plaintiff has made a case for the breach of his right. 
 
31.	For damages, the Plaintiff says he should be compensated under s 58(2) of the Constitution. 
 
32.	The Plaintiff submits that there were five occasions during which his rights were breached and for each occasion he should be awarded K7,000.00 a total of K35,000.00 
 
33.	The Plaintiff submits that he is entitled to exemplary damages and asks for K1,000 for each occasion, a total of K5,000. The Plaintiff submits that under s 12(1) of the Claims By and Against the State Act 1996 the breach of the Constitutional right was severe and continuous. The Plaintiff relies on the case of Application for Enforcement of Human Rights, in re Namson Lamaning (2013) N5419 where the court held that although the police committed unlawful acts, they were acting within their scope of their employment and so the state had failed to train and educate its police officers on acceptable methods of policing and was therefore penalised by being ordered to pay exemplary damages.

34.	The Plaintiff submits that the court should adopt the ruling in the case of In re Ruben Micah - application for enforcement of human rights (2013) N5427, who was detained in a separate confinement for no good and identifiable reason and it was in breach of s 108(1) of the Correctional Services Act which provides for separation of detainees. The court awarded K200 per day for each day of the breach and K100 per day for exemplary damages for a total of K300 per day for unconstitutional detention for 15 conservative days. 
 
35.	The Plaintiff says that in his case he was detained for six months which is 180 days. He should be entitled to K300 per day, a total of K90,000.00. 
 
36.	Relying on the case of Kolokol v Amburapi (2009) N3571, the Plaintiff says he should be entitled to general damages for pain and suffering for the 50% loss of the use of his left arm. The Plaintiff submits for a sum of K25,000.00. 
 
37.	The Plaintiff also claims goods lost, a total of K7,520.000. He says the court awarded damages for such claims in the case of Michael Wafi v Christine (2008) N7136, and this court is urged to adopt this approach. 
 
38.	Finally, the Plaintiff claims interest and costs. 
 
39.	There is no submission for the First, Second, Third and Fourth Defendants. The First, Sixth and Seventh Defendants relies on the following submissions. 
 
40.	The first submissions of the Defendants is that the Plaintiff has failed to plead the necessary particulars of the tort of negligence for the claim to be made out. 

41.	 For the ill treatment that he received, the Fifth, Sixth and Seventh Defendants submits that the evidence is not corroborated as such there is insufficient evidence to hold them responsible. If the court finds the Third Defendants were liable, then the Fifth, Sixth and Seventh Defendants makes this submission on assessment of damages. 
 
42.	For general damages relying on Kunumb v The State (2008) N3480 the Plaintiff submits that the Plaintiff should only be entitled to K10,000. This is because in that case there was 70% loss of the use of an arm. For the loss of items, the Defendants also relies on the case of Wafi v Christine where his honour Justice Cannings held and I quote:

as to (a) property loses Michael Wafi makes the biggest claim he gave evidence that he lost property worth K18,643.00 including cash of K557.00. He has itemised his loses but remains very difficult to believe that a simple trader in an urban market carrying on business in a make shift table beneath an umbrella would have stock of that value on hand. 

43.	In relation to breach of human rights the Defendants submits that the Plaintiff should only be entitled to K1,000.00 for the breach relying on the case of Kuefa v Sunku (N4855) 2012. 

44.	The Defendants submits that since the evidence is not corroborated, he should only be entitled K2, 000.00.

45.	For exemplary damages the Defendants says that the policeman should be held responsible and pay K1,000 each, a total of K4,000.00.

46.	Interests should be at the statutory rate of 2% from the date of filing of the writ to the date of judgment.

Considerations

47.	Turning now to the issues, whilst it is true that the Plaintiffs should have corroborated his evidence, I accept the Plaintiff’s submissions that the allegations were very serious, and the Defendants had more than ample time to dispute the allegations but chose not to. I therefore find that the factual allegations deposed to by the plaintiff as to what he suffered to have been proven on the balance of probability. 

48.	The second point I make is there is insufficient pleadings on negligence, and I find that the claim for negligence has not been made out. 

49.	Thirdly, I find that the First to the Fourth defendants breached the Plaintiffs right to freedom under s 32(2) of the Constitution. This was when he was apprehended at his marketplace and stopped from conducting his money lending business. The Plaintiffs livelihood was forcefully taken away from him. I find that his right to freedom was violated.  

50.	Since I have accepted the Plaintiff evidence, the assaults that he endured that he recounts in his affidavits and of being held in the maximum security was treatment that amounts to torture, cruel and degrading treatment, that a human being should never endure. I find that his right under s 36(1) of the Constitution was violated. 

51.	On the evidence led I filed that the way the Plaintiff was treated was not reasonably justifiable in a democratic society having proper regard of the rights and the human person. The assaults and incarceration with no interests to do serious investigation by the police to sustain the charge attest to this. It follows the Plaintiffs rights to s 41(1) of the Constitution was breached. 

52.	For the allegations of breaching s 37 of the Constitution, I accept the Plaintiff’s submissions that the actions of the Defendants breached this right under the specific instances in that: 

•	The Plaintiff was detained for six months without a court appearance, and this was contrary s 37(3) of the Constitution.
•	The fact that the Plaintiff was assaulted and kept in maximum security was inhumane treatment contrary to s 37(17) of the Constitution.
•	Being locked up in a maximum security was contrary to being treated as a remandee and instead 	he was treated as a convicted prisoner, and this is in violation of s 37(18) of the Constitution. 

53.	For the allegation of breach of s 42 of the Constitution, I accept that the Plaintiff’s submissions that his right was breached when the Defendants:
 
•	Did not allow him to communicate with this family members and a lawyer. He was locked in a maximum security for six (6) months and not brought to court.
•	He was not afforded an opportunity to apply for bail when he was locked up in maximum security. 

54. I therefore find that the Plaintiffs right under ss 32, 36(1), 37(3), 37(17), 37(18), 41(1) and 42 were violated by the First, Second, Third, Fourth and Sixth Defendants. 

54.	I find that the First, Second, Third Fourth and Sixth Defendants were acting in the course of duty and the State is vicariously liable for their actions.

55.	I also have regard to s 58(4) of the Constitution and rely on my case in Lala v Sully (2022) N9597 to hold the State responsible for the actions of the First, Second, Third, Fourth and Sixth Defendants as they were performing or purporting to perform their official duties when they breached the rights of the Plaintiff.

56.	Turing to the question of damages, the plaintiffs rely on the case of Application for Enforcement of Human Rights, in re Namson Lamaning to claim a sum of K7,000 for each occasion of the breach. I accept this submission but say that the following distinct rights were breached s 36(1), s 37(3), s 37(17), s 37(18), s 41(1), s 42(2)(b), s 42 (2)(b), s 42 (3)(b), that is seven occasions of the breaches. The K7,000 for each occasion is justified by the terror the Plaintiff was subjected to, that no human being should be treated this way. He was treated less than a human being, and there was simply no interest to prosecute him but only to punish him for what the police and the correctional service officers believed was his role in the escape of the renowned convict William Kapris. In such circumstances K7,000.00 for each of the seven occasions is justified, and I award a total of K49,000.00 for breach of his human rights.

57.	For being kept at the maximum security for 180 days, the Sixth Defendants was named as a party he was served a statement of claim and as he chose not to refute the allegations, so they stand as alleged. It was an instance of the “bastardization” of State power to punish and dehumanize the Plaintiff. He was not convicted of an offence. He is innocent until proven guilty. Why was he treated like an animal? These serious questions and concerns I have, has lead me to accept the Plaintiffs submissions to claim K300.00 per day, for each day of incarceration, so I award K90,000.00.

58.	For general damages for pain and suffering, I am persuaded by the Defendant’s submissions by their case authority and the amount submitted but that was in 2008 so I ward K15,000 for general damages for pain and suffering. 

60. For the loss of market items I accept the concerns raised by Cannings J in Wafi v Christine as to the earning capacity of a person in the informal sector and taking into account the submissions of the Plaintiff and the Defendants I ward K3,500.00.

61. In relation to exemplary damages I accept the submission of the Plaintiff. The State chose to sanction terror as a means of carrying out police duties. For purposes of s 12(1) of the Claims By and Against the State Act the violence were egregious and continuous. The Plaintiff says it should be awarded K1, 000.00 for each occasion a total of K5, 000.00, the Defendants says it should be K4,000.00 composed of K1, 000.00 for each Defendant relying on Abel Tomba v The State (1997) SC518. I am persuaded by the arguments of the Plaintiff and the case authorities relied on and since I have found that there were seven occasions of the breach, I award K7,000.00 to be paid by the State.

62. There is no impediment to me awarding interest on the judgment and pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015, I award interest on the judgment sum from the date of the filing of the writ to the date of judgment at the rate of 2%. 

63. As to costs, the general rule is that costs will follow the event and I award costs against the State to be taxed, if not agreed.  

64. The total judgment is composed of the following items - breach of constitutional rights K49,000.00, exemplary damages K7,000.00, for unlawful confinement in maximum security K90,000.00, general damages for loss of use of arm K15,000, for loss of property K3,500.00.

65. The total judgment sum to be paid by the State to the Plaintiff is therefore K164,500.00. 

Orders 

65. In consideration of the matters discussed above, I make the following orders by virtue of the reasons of my judgment: 

1.	The seventh defendants is liable in damages to the Plaintiff for breach of his constitutional rights.
2.	The Seventh Defendants pay the Plaintiffs the total judgment sum of K164, 500.00.
3.	The Seventh Defendants pay the Plaintiffs interest on a 2% on the judgment sum from the date of filing of writ to the date of judgment.
4.	The Seventh Defendant pays the Plaintiffs cost of the proceedings to be taxed if not agreed.
5.	The proceedings are concluded, and the file is closed.
6.	Time is abridged. 

Judgment and orders according.
__________________________________________________________________
Awalua and Associates Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the Defendants