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Kepson v Lati [2023] PGNC 307; N10473 (20 September 2023)

N10473

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 18 OF 2017

BETWEEN
JAMES LOKALYO KEPSON
Plaintiff

AND
ELI LATI
First Defendant

AND

HOSEA PATILIU
Second Defendant

AND
GEORGE KAKAS
Third Defendant

AND
GARI BAKI AS COMMISSIONER OF POLICE
Fourth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Makail, J

2023: 21^st July & 20^th September

ASSESSMENT OF DAMAGES – Entry of default judgment – Unlawful arrest – False imprisonment – Malicious prosecution – Defamation – Slander – Trespass to person – Trespass to property – Award of damages – Proof of – General damages – Special damages – Damages for breach of constitutional rights – Exemplary damages – Object of award of damages – Compensatory – Not a windfall exercise – Necessary to avoid duplicity of awards – Interests – Costs

Cases Cited:
David Haluya v. Samson Gurel (2001) N2019
Joe Hewising Keoc Nayos v. Roy Gawi (2014) N5667
Pawa Kombea v. Semal Peke [1994] PNGLR 572
Vali v. Motor Vehicles Insurance Limited (2022) N9661
Solomon Wanis v. The State (2021) N9369
Lance Kolokol v. Constable George Amburuai & The State (2009) N3571
Vance Solmein v. Constable Obert Lim & The State (2020) N8450
Abel Tomba v. The State (1997) SC518
Frank Leme v. Constable Brian Winne & The State (2021) N8971
Brenda Samson v. Nigel Varage, NDC Reserve Police & The State (2021) N9168

Counsel:
Plaintiff in person
No appearance, for Defendants

JUDGMENT

20^th September 2023

1. MAKAIL J: This is a trial on assessment of damages after default judgment was entered against the first, second and third defendants on 22^nd March 2018 and fourth and fifth defendants on 17^th November 2021.

2. At trial the plaintiff appeared person. Despite the Solicitor General filing a notice of intention to defend on behalf of the defendants on 22^nd December 2022 and being served a notice of trial on 17^th July 2023, there was no appearance by counsel. Refer to affidavit of service of plaintiff filed 18^th July 2023.

3. According to [53] of the amended writ of summons and statement of claim filed 27^th November 2017, the plaintiff seeks awards of general and special damages for unlawful arrest, false imprisonment, malicious prosecution, defamation, tort of trespass to property and person, breach of constitutional rights and exemplary damages including interests and costs. These claims are pleaded in the amended statement of claim. However, there are others that are not pleaded, but the plaintiff seeks and will be mentioned during the judgment.

Brief Facts

4. The plaintiff tendered his affidavit in support filed on 23^rd August 2022 which was marked as exhibit “P1” in support of his claim for damages. In addition to his affidavit, he tendered an affidavit in support by Phillip Najo Hippah sworn and filed 23^rd August 2022 which was marked as exhibit “P2” and an affidavit in support by Erick Minok sworn and filed 23^rd August 2022 which was marked as exhibit “P3”. As the defendants did not attend trial, there were no affidavits tendered by them.

5. From the plaintiff’s affidavit, the following facts are extracted and form the findings of the Court:

• The plaintiff is from a village in Task Valley locality in Enga Province. He is a graduate of the University of Papua New Guinea and holder of a Bachelor of Business and Management Degree. He also holds a Diploma in Human Resource from the Institute of Public Administration.
  
• At the material time, he was employed by OK Tedi Mining Limited (OTML).
  
• On or about 30^th June 2015 he received news from home that his father was assaulted by some known persons from his tribe and was admitted at the Mambisanda Immanuel Rural Hospital.
  
• On 05^th July 2015 the plaintiff sought leave from his employer and travelled to the village. His father later died from the injuries received from the assault.
  
• The plaintiff lodged a complaint with the police at Wabag Police Station for the assault of his late father. The complaint was registered, and he requested the police to arrest the suspects.
  
• A peace mediation meeting was held in the village for the suspects to surrender. When police from Wabag arrived the next day to arrest the suspects, not all of them surrendered. One Timothy Nete was the sole suspect arrested.
  
• The first defendant asked the plaintiff to attend at the Wabag Police Station to file a written statement. He did and was accompanied by 20 of his tribesmen to the Police Station on that day.
  
• The first defendant asked him to return the next day but the plaintiff informed him that he had a flight to catch to return to work in Tabubil on the afternoon of that day. Despite this, the first defendant refused his request.
  
• On 7^th July 2021 the plaintiff returned to the Police Station and in the presence of the policemen, leaders and about 50 people, the first defendant verbally abused him by calling him a fake pastor, and a criminal and his actions were as if he owned OTML.
  
• He was detained by the first defendant at the Police Station and missed his flight to Tabubil out of Wapenamanda. He was not charged with any offence and after 5 hours, was released. He made his way to Mt Hagen and boarded a commercial flight to Tabubil via Port Moresby two days later.
  
• When he arrived in Tabubil, his employer terminated him. Meanwhile the suspect Timothy Nete was released from custody by the police.
  
• On 17^th August 2015 the plaintiff and another relative Jeremiah Pondon were arrested by the first defendant at Wabag Police Station when they followed up on his complaint in relation to his late father’s assault. He was released on bail of K1,000.00 but given no receipt by the first defendant.
  
• On 16^th October 2015 at Birip village in Enga Province, the plaintiff was re-arrested by the second defendant while on his way to collect the receipt of payment for the bail money. He was transported under heavy police escort to Mt Hagen where he was detained for a night. He was not informed of his right to talk to a lawyer, friend, or family member.
  
• He was assaulted with gun butts by the second defendant and

members of the police and denied any medical treatment for his injuries. On the next day, 17^th October 2015 he was transported back to Wabag and detained at the Wabag Police Station for four and a half days. He was denied medical treatment for his injuries.

• On 21^st October 2015 he was interviewed, charged with one count of attempted murder, and released on bail by the second defendant. He paid K2,000.00 police bail money and was issued a receipt of payment.
  
• After a prolong prosecution on 04^th May 2016 the Wabag District Court struck out the charge due to insufficient evidence. He was discharged from the charge of attempted murder and refunded his K2,000.00 bail money.
  
• The charge was fabricated based on a false medical report for Timothy Nete by a Dr Anthony Kuglame of Mambisanda Immanuel Lutheran Rural Hospital stating that Timothy Nete was injured. It was used as a basis to have the plaintiff arrested and charged for the attempted murder of Timothy Nete.
  
• He produced a medical report from Gerehu General Hospital dated 26^th November 2015 which stated that he manifested the following clinical condition:
  
  • ➢ Pulse 100 per minute – elevation of pulse due to pain.
  • ➢ Left chest pain on palpation.
  • ➢ Discomfort sleeping on left side.
  • ➢ Psychological trauma as a result of police brutality.
    
• He was assessed to have soft tissue injury with internal tissue abrasions, but no abnormality with the chest cavity.
  
• According to the doctor, the plaintiff is most likely to suffer pain and swelling on his left chest, with progression of time. However, there is no recent medical report to verify if the condition of the plaintiff has deteriorated to a point where he has permanent disability.
  

6. As to his assertion that he is the Chairman of Angi Corporative Society Limited, a lay pastor of the Assemblies of God Church (AOG Church) and an alluvial gold buyer operating under Angi Management, a finding will be made when considering the claim for award of damages for defamation and loss of business income for tort of trespass.

7. Similarly, a finding will be made on his assertion that he lost money and electronic devices including receipts of payment for guest house accommodation and alluvial gold sales when the Court considers an award of damages for loss of business income for tort of trespass.

Principles on Assessment of Damages

8. It is trite law that a plaintiff who has the benefit of a default judgment still bears the burden of proving the losses. The evidence to prove the loss must be credible and reliable. Further, the loss must not be too remote to the tort and unreasonable. Furthermore, an award of damages must be supported by pleadings.

General damages for unlawful arrest

9. The plaintiff relies on the decision by Sakora J in David Haluya v. Samson Gurel (2001) N2019 where a sum of K10,000.00 was awarded to the plaintiff after he was arrested twice or recharged, and the charge was dismissed by the District Court.

10. The plaintiff submits that Haluya (supra) was decided almost 23 years ago in 2001. In his case, the Court consider the effluxion of time and increase the sum to K15,000.00.

11. It will be observed that the facts of the present case are like Haluya (supra). However, it is aggravated by the fact that the plaintiff was asked to collect the receipt of payment for his bail money by the first defendant at the Wabag Police Station for his first arrest of 17^th August 2015 and when he was on his way there, he was stopped and arrested by the second defendant for the second time without cause. This is an abuse of power by the second defendant. The second arrest was on 16^th October 2015, and he was charged four and a half days later. Add the effluxion of time, the plaintiff’s submission will be upheld and a sum of K15,000.00 is awarded.

General damages for false imprisonment

12. The tort of false imprisonment is established when a person restrains another against that person’s will with use of threat or force or deception. With respect, the plaintiff’s adoption of the statement by Sakora J in Haluya (supra) is pertinent:

“This tort is defined as any total restraint on the liberty of the person for however short a time, by the use of threat or force or confinement. Once the imprisonment is proved it is up to the imprisoner or the police to prove that it was lawful. This is a same type of confinement or detention and visits on the criminal law.”

13. In Haluya (supra), the plaintiff was awarded K10,000.00. The plaintiff submitted that given the number of detention and effluxion of time since Haluya (supra) a sum of K25,000.00 will be appropriate and reasonable.

14. In Nayos v. Gawi (2014) N5667, Sawong J stated when paraphrasing John G Fleming (Law of Torts, 7^th Ed. LBC, 1987):

“The learned author said that “False is to be understood in the sense of wrongful” and adding further that “False imprisonment arising from an improper arrest of a suspect resembles the tort of malicious prosecution, which consist of maliciously and without reasonable cause instituting a groundless criminal prosecution”. In the circumstances of this case I award a sum of K20,000.00 under this head.”

15. It will be observed that the facts of the present case are like Nayos (supra). However, it will be further noted from the facts that the plaintiff was detained three times, that is, on 7^th July 2015, 17^th August 2015, and 16^th October 2015. He does not press the detention of 7^th July 2015. Give this, his case is aggravated by the fact that he was detained twice, first on 17^th August 2015 and second, on 16^th October 2015. The second detention was four and a half days long and charged on a fabricated charge. Add the effluxion of time, the plaintiff’s submission will be upheld and a sum of K25,000.00 is awarded.

General damages for malicious prosecution

16. The plaintiff relies on Pawa Kombea v. Semal Peke [1994] PNGLR 572. That was a case where the plaintiff was arrested and detained for four days and charged with rape, prosecuted over a considerable period with numerous court appearances. The plaintiff was a prominent member of the community, and politician and the matter were given wide media publicity. The complaint against him was false. He sued for malicious prosecution, false imprisonment, defamation and was awarded K15,000.00.

17. In Haluya (supra) Sakora J stated that there had been an obvious manipulation of the legal and judicial system and deliberate abuse of State power by members of the police when he awarded a sum of K18,000.00 to the plaintiff.

18. In Nayos (supra) Sawong J when awarding a sum of K20,000.00 to the plaintiff observed:

“In the present case it is clear from the evidence that the plaintiff’s arrest and detention was based on the fabricated evidence by the second defendant whilst acting in the course of his duties. The plaintiff was wrongfully arrested, falsely imprisoned and subsequently maliciously prosecuted.”

19. The Court accepts the plaintiff’s submissions that in the present case, he was arrested, detained on a false and fabricated evidence like in Nayos (supra). In this case the first and second defendant conspired with Dr Kuglame to obtain a false medical report for Timothy Nete to form the basis for the plaintiff’s arrest and charge. Like Haluya (supra) it is also a clear case of abuse of State power by the first and second defendants and manipulation of the legal and judicial system.

20. Considering the effluxion of time, inflation and length of the prosecution the plaintiff shall be awarded a sum of K25,000.00.

General damages for defamation

21. Turning to the claim for general damages for defamation, first, having read the plaintiff’s affidavit (exhibit ‘P1”) it will be accepted based on a certificate of registration of Angi Corporative Society Limited from the Acting Registrar of Corporative Society that there is in existence, a society as described by the plaintiff. However, there is no record of the plaintiff’s appointment as Chairman of Angi Corporative Society Limited to verify his assertion.

22. Secondly, there is a letter from Associate Pastor Gharo Maru of the AOG Church to verify that the plaintiff was an active member of the church. There is no mention of the plaintiff being a lay pastor of the church.

23. Against those is that one of the tests to meet in an action for defamation is the statement that is said to be false must be communicated to a third party other than the plaintiff himself. Based on the statement the third party must hold a low opinion of the plaintiff. In this case the defamation is in the form of a slander because the plaintiff asserted that the first defendant uttered adverse comments about his professional work and spiritual life at Wabag Police Station in the presence of his tribesmen and members of the police.

24. However, the plaintiff did not file an affidavit from a third party who heard the utterance by the first defendant to verify that given the utterance he or she has formed a low opinion of the plaintiff. The third party’s evidence is necessary to establish the extent of the slanderous statement on the plaintiff and sum to award as damages. This evidence is missing.

25. In the circumstances, the plaintiff’s assertion is insufficient to establish that he is the Chairman of the said Corporative Society and further, lay pastor of the AOG Church and that the statement uttered by the first defendant were false and a third party who heard it formed a low opinion of the plaintiff for the Court to award damages. For these reasons, there shall be no award of damages for defamation.

Special damages for trespass to property

26. As to the claim for loss of money and electronic devices the plaintiff seeks damages in the total sum of K12,170.00 which comprises of:

(a) Cash K 5,000.00
(b) Dell Laptop Computer K 4,500.00
(c) Samsung Galaxy Mobile Phone K 870.00
(d) Digital camera K 670.00
(e) Hard drive K 300.00
(f) Return Air Niugini Ticket K 830.00
Total K12,170.00

27. It is trite law that special damages require strict proof. Evidence of receipt of payment is necessary to establish the costs of the property that was lost or destroyed. In this case the plaintiff failed to produce receipts of payments of the electronic devices including airline ticket. As to the missing cash, it will be his word against the defendants, but the defendants led no evidence to refute the plaintiff’s assertion. The plaintiff’s assertion remains unchallenged and will be accepted.

28. In the absence of receipts of payments and the unchallenged assertion of missing cash it is appropriate that a nominal sum of K10,000.00 be awarded. This sum is awarded.

General damages for trespass to person

29. There are two parts to this claim for damages which the plaintiff seeks:

(a) General damages for pain, suffering and humiliation in the sum of K100,000.00, and

(b) General damages for pain and suffering from personal injuries from police assault in the sum of K10,000.00.

30. The plaintiff relies on Nayos (supra) where a sum of K100,000.00 was awarded for pain, suffering and humiliation and Vali v. Motor Vehicles Insurance Limited (2022) N9661 where a sum of K10,000.00 was awarded for pain and suffering for personal injuries. However, while it is accepted that it was a traumatising experience for the plaintiff to be arrested, detained twice, maliciously prosecuted, that the prosecution took long to conclude and further assaulted and suffered pain from physical injuries and humiliation, it is necessary to avoid duplicity of awards because it would amount to double dipping and contrary to the object of awarding general damages which is compensatory, that is, to restore the plaintiff to the original position as possible as far as money can do and not as a windfall exercise.

31. The point is the plaintiff has made a claim for damages and the Court has awarded damages to compensate him for the traumatising experience he was subjected to under the claims for unlawful arrest, false imprisonment, and malicious prosecution. Thus, it will not be fair and appropriate to award any more than is necessary in the circumstances for the pain and grief arising from the injuries sustained in the police assault. In the absence of a recent medical report to establish that the plaintiff’s condition has deteriorated to a point where he has permanent disabilities, it is insufficient to rely on the medical report from Gerehu General Hospital to make such a finding. However, as the Court has found above, the plaintiff suffered injuries to his chest and general body pain and will be awarded damages.

32. In Solomon Wanis v. The State (2021) N9369 the plaintiff was awarded K8,000.00 as general damages for general bodily and facial injuries from a police assault. Adopting the above award in this case, a sum of K8,000.00 is awarded.

Damages for breach of constitutional rights

33. A further award of claim for damages which the plaintiff makes is for damages for breach of constitutional rights under:

• Section 32 – Right to Freedom – Sum of K10,000.00 being claimed.
• Section 36 – Protection from inhuman treatment– Sum of K10,000.00 being claimed.
• Section 37(1) – Protection of the law – Sum of K10,000.00 being claimed.
• Section 37(17) – Protection of the law – Sum of K10,000.00 being claimed.
• Section 41 – Freedom from harsh and oppressive acts – Sum of K10,000.00 being claimed.
• Section 42 – Liberty of the person – Sum of K10,000.00 being claimed.
• Section 44 – Freedom from arbitrary search and entry – Sum of K10,000.00 being claimed.
• Section 53 – Protection from unjust deprivation of property – Sum of K10,000.00 being claimed.
  

34. An award of damages for breach of constitutional rights may be granted as a separate award from general damages for pain and suffering where it is warranted: Lance Kolokol v. Constable George Amburuai & The State (2009) N13571 and adopted in Nayos (supra). Proceeding in this premise, the real issue is the appropriate sum to award as damages for each breach. The plaintiff submits K10,000.00 for each breach.

35. Again, there is no hard and fast rule on how to assess damages for breach of constitutional rights and a useful starting point is to consider awards in past cases of similar nature. Further, it is necessary to avoid duplicity of awards as the plaintiff has sought damages for unlawful arrest, false imprisonment, malicious prosecution and trespass to property and person and it is fair and appropriate that a sum less than what has been awarded for those claims should be awarded. In Vance Solmein v. Constable Obert Lim & The State (2020) N8450, the plaintiff was assaulted, verbally abused, and lost his money to members of the police. He was awarded a sum of K2,000.00 for each breach for a total of six breaches ranging from breach of protection from inhuman treatment to breach of freedom from arbitrary search and entry, giving a total of K12,000.00. Adopting the award per breach in Vance Solmein (supra), the plaintiff is awarded:

• K2,000.00 for breach of Section 32 – Right to Freedom.
• K2,000.00 for breach of Section 36 – Protection from inhuman treatment.
• K2,000.00 for breach of Section 37(1) – Protection of the law.
• K2,000.00 for breach of Section 37(17) – Protection of the law.
• K2,000.00 for breach of Section 41 – Freedom from harsh and oppressive acts.
• K2,000.00 for breach of Section 42 – Liberty of the person.
• K2,000.00 for breach of Section 44 – Freedom from arbitrary search and entry.
• K2,000.00 for breach of Section 53 – Protection from unjust deprivation of property.
  

Total – K16,000.000

36. The Court awards a total sum of K16,000.00 for breach of constitutional rights.

Exemplary damages

37. The plaintiff seeks exemplary damages in the sum of K45,000.00 to be paid by the fifth defendant on the grounds that the first and second defendants abused State power by arresting and detaining him twice on a charge that was based on a fabricated medical report and that they conspired with Tom Nete and others to manipulate the legal and judicial system to make him suffer.

38. The Court accepts the plaintiff’s submissions based on the grounds he has outlined to that extent that he has established that an award of exemplary damages is appropriate. The real question is whether the fifth defendant should be held liable to pay exemplary damages for abuse of State power by the first and second defendants, who are employees of the State, in arresting and detaining the plaintiff on two different occasions on a charge that was based on fabricated medical report. Not only that, but they have conspired with Tom Nete and others to manipulate the legal and judicial system to hurt the plaintiff.

39. If the purpose of exemplary damages is to punish the wrong-doer and teach the wrong-doer a lesson, there is a strong argument that the wrong-doer must be held personally liable to pay exemplary damages rather than the employer, in this case, the fifth defendant. Consistent with the Supreme Court decision in Abel Tomba v. The State (1997) SC518 where abuse of State power by the first and second defendants is aggravated by two arrests and two detentions at different times, and based on a charge that was based on a fabricated medical report in collusion with Tom Nete and others, it is appropriate that the first and second defendants should be held personally liable to pay exemplary damages.

40. The next issue is the appropriate sum to award. Again, there is no hard and fast rule on how to assess an appropriate sum for exemplary damages. However, again, a useful guide is to consider awards in past cases of similar nature. In Frank Leme v. Constable Brian Winne & The State (2021) N8971, four members of the police were ordered to pay K2,000.00 each for exemplary damages and the fifth member was ordered to pay K5,000.00. That was a case where the defendants brutally assaulted the plaintiff who was in the company of former NCD Metropolitan Superintendent Joseph Tondop during the political impasse of 2011/2012 and arrest of the former Chief Justice.

41. In Brenda Samson v. Nigel Varage, NDC Reserve Police & The State (2021) N9168 the plaintiff, a street vendor was assaulted and her goods for sale at Waigani destroyed by four reserve-members of police identified as first to fourth defendants. They were ordered to each pay a sum of K1,000.00 as exemplary damages.

42. While in Frank Leme (supra) the tort was an assault, in this case unlawful arrest, false imprisonment and malicious prosecution, the abuse of State power by members of the police calls for an award up to K5,000.00. In the circumstances, the first defendant will pay K5,000.00 and the second defendant will pay K5,000.00 to the plaintiff. As to the third defendant, there was no finding of any wrong-doing as alleged by the plaintiff because there is no evidence to establish that he directed the first and second defendants to arrest and lock up the plaintiff. Secondly, while the plaintiff asserted in his affidavit (exhibit “P1”) that persons from his own tribe in the likes of Billy Kambao and Michael Masko conspired with the third defendant, it is hearsay, assumptive, generalisation and inadmissible. Thus, there will be no award of exemplary damages against the third defendant.

Additional claims for award of damages

43. There are additional claims for award of damages by the plaintiff. The Court alluded to this at beginning of the judgment. These claims have no foundation in the pleadings or are unsupported by pleadings and will be disregarded. These are:

1. Special damages for loss of employment, salary and benefits from OTML – Sum of K230,428.00 is being claimed.
   
2. Special damages for loss of land and building in Port Moresby – Sum of K85,000.00 is being claimed.
   
3. Special damages for loss of income from alluvial gold buying business – Sum of K200,000.00 is being claimed.
   
4. Special damages for costs of air fares, hire car, fuel accommodation and associated costs – Total sum of K231,753.20 is being claimed.
   

44. These claims are dismissed.

Conclusion

45. The plaintiff shall have a judgment in the total sum of K99,000.00 against the defendants which shall comprise of:

(a) K15,000.00 as general damages for unlawful arrest.

(b) K25,000.00 as general damages for false imprisonment.

(c) K25,000.00 as general damages for malicious prosecution.

(d) K10, 000.00 as nominal damages for trespass to property.

(e) K 8,000.00 as general damages for trespass to person.

(f) K16,000.00 as damages for breach of constitutional rights.

46. Additionally, the plaintiff shall have judgment against the first defendant in the sum of K5,000.00 as exemplary damages and judgment against the second defendant in the sum of K5,000.00 as exemplary damages.

Interests

47. The plaintiff also seeks interest at rate of 8% per annum from date of cause of action to date of judgment. However, while the cause of action arose in or about August 2015, the writ of summons was issued on 17^th January 2017 and there is no explanation by the plaintiff for the delay of about two years in issuing the writ of summons. In all fairness, interest shall run from date of issue of writ of summons on 27^th January 2017 until date of judgment on assessment of damages and thereafter, until final settlement. Under Section 4(1) and (2) of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015 in an action where the State is a defendant, the current rate of interest is 2% per annum.

48. In this case the State is one of the defendants and is vicariously liable for the actions and/or omission of the other defendants. It follows that there shall be a judgment for interest at the rate of 2% per annum on the total judgment sum of K99,000.00 to run from the date of issue of writ of summons to the date of judgment on assessment of damages and thereafter, until final settlement.

Costs

49. Finally, as the successful party, the plaintiff is awarded costs of the proceeding to be paid by the defendants, to be taxed, if not agreed.

Order

50. The final terms of the order are:

1. Judgment is entered in favour of the plaintiff in the total sum of K99,000.00.
   
2. Judgment is entered against the first defendant to pay exemplary damages in the sum of K5,000.00.
   
3. Judgment is entered against the second defendant to pay exemplary damages in the sum of K5,000.00.
   
4. Judgment is entered for interest at the rate of 2% on the judgment sum of K99,000.00 from the date of issue of writ of summons to the date of judgment on assessment of damages and thereafter, until final settlement pursuant to Section 4(1) and (2) of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.
   

5. The plaintiff is awarded costs of the proceeding to be paid by the defendants, to be taxed, if not agreed.

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Solicitor General: Lawyers for Defendants