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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS 471 OF 2020 (IECMS)
BETWEEN:
SYLVESTER KALAUT
First Plaintiff
AND:
MATTHEW VINGOME, First Constable of Police
First Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
WAIGANI: BRE J
14 MARCH, 30 SEPTEMBER 2025
MALICIOUS PROSECUTION – elements considered – what constitutes prosecution – whether an application for an arrest warrant is a prosecution – nature of application considered – warrant not executed – declared null and void – application for arrest warrant start of criminal process which sets the criminal law in motion – court process to obtain warrant improperly applied for a personal vendetta to obtain warrant – no intention to execute the warrant - the plaintiff was prosecuted with malicious intent - malicious prosecution established.
Facts
The first defendant policeman applied for and obtained a warrant on 25 July 2021, to arrest the plaintiff who is the superior officer in charge of the human resources section of the RPNGC. The warrant was obtained for reasons that the plaintiff ceased his salary and was insubordinate for filing a judicial review proceeding against the Police Commissioner's appointment amongst two other reasons. He never executed the warrant. The plaintiff knew about the warrant and was distressed, and it affected his decision to freely move around. He obtained an order from the National Court nullifying the warrant some nine months later. He claims he was maliciously prosecuted.
Held
1. To prosecute is to set the law in motion by instituting proceedings in Court. The first defendant set the criminal law in motion by obtaining a Court order in the form of an arrest warrant from the District Court which remained active for an indefinite period of time, until it was declared null and void by the National Court.
2. An application to procure a warrant of arrest for an improper or malicious motive constitutes an actionable wrong in maliciously procuring a Court order.
3. There is overwhelming evidence that the first defendant abused the District Court process by improperly and out of spite or ill-will against the plaintiff applied for and obtained the warrant for the plaintiff's arrest for personal and baseless reasons, when he had no reasonable or probable cause to obtain the warrant.
Cases cited
Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2013] 4 All ER 8
Eremas Wartoto v The State [2015] SC1411
Geoffrey Vaki v Matthew Damaru [2016] SC1557
Gibbs v Rea [1998] UKPC 3; [1998] AC 786
Gregory v Portsmouth City Council [2000] UKHL 3; [2000] 1 AC 419
In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police [2014] SC1388
Kapi v Kambang Holdings Ltd [2011] N4451
Kavo v Maipakai [2022] N1050
Londe Tole v Joe Kongi and Ors [2019] N7728
Mahara Ignote v Hualupmomi & The State [1996] PNGLR 208
Maku v Maliwolo [2012] SC1771
Nui v Tanda [2004] N2765
Roy v Prior [1970] 2 All ER 729
State v Moroca [2007] N4968
Thompson v Kalaut [2011] N4265
Thorpe v Priestnall [1896] UKLawRpKQB 197; [1897] 1 QB 159
Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1, 190
Writ of Summons
Trial by affidavit with no cross-examination where the plaintiff sought to prove malicious prosecution, negligence, breach of constitutional
right and vicarious liability.
Counsel
Mr Sylvester Kalaut, the plaintiff, in person
Mr B. Samiat, for the defendants
JUDGEMENT
1.BRE AJ: Mr Sylvester Kalaut claims that he was maliciously prosecuted by First Constable Matthew Vingome for abusing his powers by filing misleading, defective and conflicting information at the District Court to obtain on 25 June 2021, a warrant to arrest him.
2. Mr Kalaut sought to prove liability for malicious prosecution, negligence and breach of his constitutional right to freedom of movement and to prove that the State is vicariously liable for the actions of First Constable Vingome. He commenced this proceeding on 21 November 2022 and relies on his evidence contained in his affidavit filed on 21 November 2022[1] which was tendered into evidence, accepted as an exhibit and marked 'P1'.
3. Mr Kalaut pleaded that he was maliciously prosecuted when the First Constable Matthew Vingome obtained an ex parte warrant of arrest at the District Court without any probable or reasonable cause that Mr Kalaut committed a crime, and with malicious intent to prosecute him. That as a result it restricted his freedom of movement and caused harm to his person as he suffered distress and harm to his reputation.
4. Mr Kalaut's evidence is that he is a career Police officer with good standing and reputation with over 24 years of service rising
to the high rank of Assistant Commissioner of Police from October 2015 and was the Assistant Commissioner Police Human Resources
Division from 11 November 2017. He is also a Lawyer by profession and was admitted to the bar on 30 November 2007.
His evidence is that he came to know about the arrest warrant from a policeman three days after the first defendant obtained it.
He obtained copies of the supporting documents that were relied on to obtain the warrant. His view of the information is that it is
misleading, legally defective and contains false allegations instituted by the first defendant in bad faith to tarnish his reputation.
That the first defendant abused his police powers concerning an administrative decision by Mr Kalaut to cease First Constable Vingome’s
salary as he was receiving more than he should have and for a possibly contemptuous allegation of insubordination for filing a judicial
review application to challenge the current Police Commissioner's appointment while the application was pending.
5. That after three months of the police not executing the warrant, and with his freedom of movement restricted by the fear of being arrested at any time while the warrant remained pending; Mr Kalaut filed proceedings in the National Court and successfully had the warrant of arrest declared null and void on 14 December 2021. The National Court ruled that the warrant was obtained in an "apparent abuse of process and therefore null and void".
6. The terms of the arrest warrant are reproduced below:
"Arrest Act 1997
WARRANT OF ARREST
To: (a) Chief Inspector – Mathew Vingome at Internal Investigating Unit HQ Police Station
(b) officer in charge at the police internal investigations unit, HQ Police Station
(c) all officers and members of the Police Force.
Whereas on the complaint of a chief inspector Unit HQ of at Police HQ, Konedobu Police Station – Matthew Vingome
Dated 18 of February, 2019 is considered necessary by this court to arrest Sylvester Kalaut of village District East Sepik Province,
(a) Has committed an offence in Papua New Guinea; and
(b) His/Her arrest is necessary -
To ensure his appearance in court to answer to the offence charge; or
To prevent the continuation or repetition of the offence or the commission of a further offence; or
To preserve the safety or welfare of a member of the public or of him, in respect of
1. Being ACP Human Resource employed by Papua New Guinea Constabulary at Police Head Quarters, Konedobu, abused the authority of the Office of the ACP Human Resource, by authorising your lawyers to file a Judicial Review in the National Court which insubordination as Commissioner of Police under sections 197 and 198 of PNG Constitution as the State of Emergency Controller Section 4 (1) (2) 5 (1)(a)(b)(c) (2) (3)(a)(b) 7 (a)(b)(c)(d)(e)(f)(g)(h)(i)(j)(k)(l)(m)
8 (a)(b)(c)(d)(e)(f)(g)(h)(i)(j)(k)(l) (3)(a)(b) by virtue of the emergency (General Provision), to wit: (Covid 19) Regulation 2020 (Regulation) and other emergency laws, statutory instrument No. 1 of 2020 property of the Head of State acting with and in accordance with, the advice of the National Executive Council under part 5 of Constitution to be deemed to have come into operation on the 23 day of March 2020. Emergency (General Provisions) (Covid 19) Regulation 2020, which is an arbitrary act prejudicial to the rights and authority of the Commission of Police as the Emergency controller.
Thereby contravening to section 4 (1)(2) 5(1)(a)(b)(c) (2) (3) (a)(b) 7 (a)(b)(c)(d)(e)(f)(g)(h)(i)(j)(k)(l)(m)
8 (1)(2) (a)(b)(c)(d)(e)(f)(g)(h)(i)(j)(k)(l)(3)(a)(b) Statutory Instrument No. 1 of 2020 and Section 92 (1)(2) of the Criminal Code Act, 1974, Chapter of the PNG Criminal Code Act. Chapter 262.
YOU ARE THEREFORE ORDERED to arrest the above-named SLYVESTER KALAUT.
And bring Him before the court to answer the said complaint and be further dealt with according to law.
Dated at Waigani the 25th day of June, 2021.”
7. The State submits that the plaintiff's claim for malicious prosecution cannot succeed and so would the other causes of action,
as the formal criminal process of prosecution had not started. That the plaintiff was neither arrested nor charged with any criminal
offence. That there was no prosecution.
That he had filed proceedings in the National Court after three months of the warrant remaining unexecuted, to dismiss the pending
arrest warrant. That the information relied on by the first defendant's application is for the District Court to assess. That the
plaintiff made his own decision not to move around freely because of the arrest warrant. That there was no arrest nor detention by
the defendants to affect his constitutional right to freedom of movement.
The defence did not rely on any evidence but made these submissions on law.
8. In the absence of evidence from the defendants, I accept Mr Kalaut's evidence about the circumstances surrounding the obtaining of the arrest warrant, his knowledge of it and his response to it.
9. After submissions, it became clear that the main issue for me to decide is whether Mr Kalaut was prosecuted.
10. It is not disputed that First Constable Matthew Vingome applied for a warrant of arrest before the District Court and was granted the warrant on 25 June 2021.
11. In Vaki v Damaru [2016] SC1557 his Honour Deputy Chief Justice Kandakasi who was in the minority, was of the view that an arrest warrant was an administrative order and not a Court Order by its nature as it was granted ex parte and the police had a discretion on whether to execute it. The majority comprised of Justices Hartshorn and Kassman were of the view that it was a Court Order.
12. Earlier in In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police [2014] SC1388 the Supreme Court in interpreting the constitutional provisions applying to the Police Commissioner regarding the execution of the
same warrant of arrest that was later before the Supreme Court in Vaki v Damaru [2016] SC1557, discussed the legal impact of a warrant of arrest and held at [130] that the warrant of arrest was a Court order and must be obeyed
and at [120] that it was not a discretionary matter for the Police and must be executed.
Their views are reproduced below:
"Our view is that the warrant at the centre of these references is in fact and law, for all intents and purposes, an order of the District Court and that it must be obeyed by those persons to whom it is directed."
"We do not accept that Section 13 of the Arrest Act makes the execution of a warrant a matter of discretion... We agree that an arrest warrant is indeed an authority to do something that would otherwise be unlawful... This interpretation of Section 13 is complemented by reference to Section 274 (duty of members of Police Force) of the District Courts Act, which states:
"All members of the Police Force shall obey the warrants, orders and directions of Magistrates granted, given or done, and shall perform their several offices and duties in respect of those offices under the pains and penalties to which a member of the Police Force is liable for neglect of duty.""
[Emphasis added]
13. The documents which First Constable Vingome relied on to apply for the warrant were a notice of motion, supporting affidavit and
the draft arrest warrant which was endorsed and granted by the Magistrate. These are contained in annexures “SK 10, 12 and
13’ of the plaintiff's affidavit exhibit 'P1'[2] and also has two informations pursuant to the District Courts Act and a summary of facts signed by the first defendant.
One of the information cited the reason of his demotion from Chief Inspector to First Constable and being put off the payroll. The
first defendant also swore to these facts in his affidavit in support of his motion to obtain the warrant.
14. The plaintiff disputes the first defendant held the rank of Chief Inspector and so had his salary ceased.
15. The warrant of arrest ordered Chief Inspector Matthew Vingome, the officer in charge of the Police Investigation Unit and all members of the public to arrest Sylvester Kalaut.
16. I will therefore address first the primary issue of whether the plaintiff was prosecuted.
Elements of malicious prosecution
17. There are four elements of malicious prosecution which must all be proved in order for the burden of proof to be discharged. See
Mahara Ignote v Hualupmomi & The State [1996] PNGLR 208 and Kapi v Kambang Holdings Ltd [2011] N4451.
These are:
(1) the defendant is responsible for the instituting, adopting or continuing of proceedings against the plaintiff;
(2) the defendant instituted the proceeding without reasonable and probable cause;
(3) the defendant was motivated by malice or some other improper purpose; and
(4) the proceeding was resolved in favour of the plaintiff.
See also Londe Tole v Joe Kongi and Ors [2019] N7728 and Kavo v Maipakai [2022]N10502.
18. An essential aspect of the tort of malicious prosecution is to prove harm was caused as a result of the malicious prosecution.
In Nui v Tanda [2004] N2765, his Honour Cannings J, summarised the elements of malicious prosecution as:
In Gregory v Portsmouth City Council [2000] UKHL 3; [2000] 1 AC 419 the house of lords stated:
"Damage is a necessary ingredient of the tort. This element of the tort was explained in a dictum of Holt C.J. in Savill v. Roberts (1698) 12 Mod. Rep. 208. Holt C.J. defined the interests protected by the tort as follows:
"there are three sorts of damages, any one of which is sufficient to support this action. First, damage to [the plaintiff's] fame, if the matter whereof he be accused be scandalous. Secondly, to his person, whereby he is imprisoned. Thirdly, to his property, whereby he is put to charges and expenses."
19. With respect, I would add harm to the person, fame or property of the plaintiff as a fifth element of the tort of malicious prosecution.
The law
20. In the English case of Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2013] 4 All ER 8 at [142] the Privy Council cited Gregory v Portsmouth City Council [2000] UKHL 3; [2000] 1 AC 419, 426, and commented that:-
"a distinctive feature of the tort is that the defendant has abused the coercive powers of the state to punish."
Also at [134] the court cited Lord Steyn in Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1, 190, that:-
"the rationale of the tort is that in a legal system based on the rule of law, executive or administrative power 'may be exercised only for the public good' and not for ulterior and improper purposes."
Section 41 of the Constitution which clarifies proscribed or prohibited acts is also worth mentioning as it requires due observance of the law for the public good.
21. The tort of malicious prosecution is a civil remedy to keep law enforcement agencies in check with the exercise of the coercive
powers of the State to punish, so the judicial process is not abused against a person out of spite, to satisfy a personal vendetta
or improperly used to harm a person's reputation, their physical or mental state or property. See Gregory v Portsmouth City Council and Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd.
22. The first element of the tort of malicious prosecution requires the plaintiff to prove on a balance of probabilities that the
defendant is responsible for instituting, adopting or continuing proceedings against him.
His Honour Cannings J explains in Nui v Tanda:-
"The first element focuses on things that the alleged tortfeasor (the defendant) has done to subject the alleged victim (the plaintiff) to the criminal process. The defendant must do something tangible, eg bring the matter to court or, at least, arrest, detain or charge the plaintiff. The more advanced is the criminal process, the more likely that this element of the tort will be established."
[Emphasis mine]
What then does the term 'prosecution' in the tort of malicious prosecution mean?
23. In State v Moroca [2007] N4968 at [16] and [17] His honour Cannings J, defined the term 'prosecution', in its plain English meaning to explain that prosecution is a:-
"court case in which a person is charged with committing a criminal offence ... the prosecution of an offence starts in the District Court ,...when the information is laid."
[Emphasis added]
24. The existing local caselaw on malicious prosecution concern persons who were arrested charged and the decisions in cases such as State v Moroca [2007] N4968, Tole v Kongi and others, refer to prosecution arising from criminal charges. That is the distinction with this case, which in my view tends to extend the current boundaries of the tort in our jurisdiction. I therefore consider it vital to consider the nature of the proceeding giving rise to this claim in the tort of malicious prosecution to ascertain whether it is a prosecution. The Court proceeding started in the District Court by application filed ex parte, to obtain the arrest warrant.
25. I infer from the definition in State v Moroca that the 'information' referred to is the criminal charge and not the 'information' used to obtain a warrant given the facts of that case.
An 'information' is defined by the District Court Act Chapter 40 (‘DCA’) to include: -
"a complaint for an offence..." [3]
[Emphasis added]
An 'offence' [4] is defined by the Interpretation Act Chapter 2 in relation to a law to include: -
"a breach or contravention of, or a failure to comply with, the law".
26. The proceeding that is initiated to obtain a warrant of arrest is prescribed in section 8 of the Arrest Act which requires an information to be laid before the District Court to demonstrate reasonable grounds for a Magistrate to issue
the warrant. This process is also provided under section 49 DCA.
Section 8 of the Arrest Act reads:
"8. Issue of Warrant by a Court Other than a Local Court.
Where an information is laid before a court, other than a Local Court, that there are reasonable grounds for believing–
(a) that a person has committed an offence within the country; and
(b) that it would not be practicable or desirable to proceed against the person by summons in that his arrest is necessary–
(i) to ensure his appearance in court to answer a charge for the offence; or
(ii) to prevent–
(A) the continuation or repetition of the offence; or
(B) the commission of a further offence; or
(iii) to preserve the safety or welfare of a member of the public or of the person,
the court may issue a warrant for the arrest of the person."
(Emphasis added)
27. The reference to the laying of information in section 8 of the Arrest Act can only refer to a complaint for an offence that a policeman believed on reasonable grounds that a person has committed an offence and that his arrest is necessary to:
" (i) to ensure his appearance in court to answer a charge for the offence; or
(ii) to prevent –
(A) the continuation or repetition of the offence; or
(B) the commission of a further offence; or
(iii) to preserve the safety or welfare of a member of the public or of the person."
28. Division 5 of Part IV of the District Court Act ('DCA') provides the matters which a Magistrate should consider when deciding whether to issue a warrant. That process provides for an 'information' to be laid by a policeman according to sections 8 Arrest Act and 49 DCA to obtain a warrant to arrest a person suspected of committing an indicatable offence.
This process is distinct, in my view, from the process in Division 1 and 2 of Part IV of the District Court Act which relates to the institution of a criminal charge or for a civil complaint against a defendant.
But both processes require the information to be filed in court for deliberation. The District Court is a court of competent jurisdiction
and decisions made by it are court orders to be obeyed.
29. An aggrieved person can seek redress against the District Court decision in three ways, by appeal, judicial review or appealing to the inherent jurisdiction of the National Court. See In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police [2014] SC1388.
30. Sections 11, 12 and 13 of the Arrest Act contain instructions about the warrant and are reproduced below:
"11. Direction of Warrant.
A warrant may be directed to all or any of the following: –
(a) a named person;
(b) the officer for the time being in charge of police in a particular province or place;
(c) all members of the Police Force."
"12. Form of Warrant.
A warrant shall–
(a) name or otherwise describe the person against whom it is issued; and
(b) state briefly the offence or nature of the information on which it is founded; and
(c) in the case of a warrant to arrest a defendant–order the person to whom it is directed to arrest the defendant and to bring him before a court to answer to the information and to be further dealt with according to law."
[Emphasis added]
"13. Execution of Warrants.
Where a warrant is directed to a person he may, in accordance with Part IV, and with assistants, if necessary, arrest the person against whom the warrant is issued."
31. Hence, a warrant of arrest is obtained by the Magistrate being satisfied that reasonable grounds exist, then exercises his or her judicial discretion to grant the warrant. The warrant directs the police to arrest the offender.
32. In Eremas Wartoto v The State [2015] SC1411 a five-member Supreme Court which included His Honours Sakora J and Kandakasi J ( as he then was) explained that there were five stages in the whole criminal process from start to finish and these were, at [38]:
"... (1) police investigation process leading to a formal charge; (2) District Court committal stage leading to a decision to commit or not; (3) Public Prosecutor deciding whether or not to present an indictment against the accused; (4) the National Court trial process resulting in a decision on guilt and if need be the sentencing process; and (5) the process of Appeal or Review by the Supreme Court where appropriate."
[Emphasis added]
According to the learned authors in Clerk & Lindsell on torts[4]:-
" to prosecute is to set the law in motion and the law is only set in motion by an appeal to some person clothed with judicial authority in regard to the matter in question, and to be liable for malicious prosecution a person must at least be actively instrumental in so setting the law in motion. This involves 'active steps' to ensure that a prosecution results."
[Emphasis added]
33. In my view, to set the law in motion is to do something tangible, such as applying to a Court for a warrant of arrest or search. See Nui v Tanda.
34. In the English case of Thorpe v Priestnall [1896] UKLawRpKQB 197; [1897] 1 QB 159, the court held that prosecution commenced when the information was laid despite it being defective. In that case, the law stated that no prosecution could be commenced except with the consent in writing of the chief police officer. The chief officer gave a verbal consent to prosecute, and the information was filed in court. The written consent was issued later after the information was laid and the summons issued. The appeal court did not recognise the information and held that it was defective because it was laid without the requisite consent in writing at the time of filing.
35. In our jurisdiction in Ignote v Hualupmomi and The State [1996] PNGLR 308, the Court remarked on the first element of the tort of malicious prosecution that:-
"The question is how does one decide to initiate proceedings. The first thing is that the defendant must have been actually instrumental in instigating the proceedings... So if the defendant set the prosecution in motion by charging the plaintiff that will no doubt constitute setting the prosecution in motion."
[Emphasis added]
36. Here, the facts are clear, the plaintiff was not arrested nor charged with any offence but an arrest warrant was obtained from the District Court and pending execution.
37. There are no PNG caselaw on warrants and therefore I resort to overseas cases. My searches result in only two English cases which I find are of persuasive value. These are Roy v Prior [1970] 2 All ER 729 and Gibbs v Rea [1998] UKPC 3; [1998] AC 786.
38. Roy v Prior [1970] 2 All ER 729 concerns an arrest warrant obtained by a solicitor on false information presented to the Court to secure the attendance of a witness. The false information was that the plaintiff was avoiding attending court. The arrest warrant was issued, and the plaintiff locked up in the cells overnight and brought to court in the morning to give evidence.
39. Gibbs v Rea [1998] UKPC 3; [1998] AC 786 concerned a search warrant that directed the search and arrest of a person who was alleged to be involved in drugs and whose home was searched while he was abroad.
40. It was held in both cases that there was an actionable claim for maliciously procuring a Court order.
41. The majority in Gibbs v Rea held that malicious prosecution also applies to when the order is obtained. They state that:
" As for the ingredients of the tort, it is obvious and not disputed that the plaintiff must show that the defendant made, or caused to be made, the application for the search warrant, that he acted maliciously and that the damage of which the plaintiff complains resulted from the fact that the warrant was issued or was executed."
[Emphasis added]
42. In Gibbs v Rea the Court explained:
" That it is an actionable wrong to procure the issue of a search warrant without reasonable cause and with malice has long been recognized, though seldom successfully prosecuted: see Elsee v. Smith, ( Hope v. Evened 17 Q.B.D. at 340), ( Everett v. Ribbands [1952] 2 Q.B. at 205) and Reynolds v. Metropolitan Police Commr.( [1985] Q.B. at 886)."
43. In Roy v Prior the English court attributed malicious prosecution with abuse of process and commented that:
"The gist of the complaint, where malicious arrest is asserted, is not that some evidence is given (though if evidence is given falsely it may be contended that malice is indicated) but that an arrest has been secured as a result of some malicious proceeding for which there was no reasonable cause.
So also in actions based upon alleged abuses of the process of the court it will often have happened that the court will have been induced to act by reason of some false evidence given by someone. In such cases the actions are not brought on or in respect of any evidence given but in respect of malicious abuse of process (see Elsee against Smith, 2 Chitty's Reports, p. 304)."
[Emphasis added]
44. It therefore appears that an application for a warrant can be regarded as an actionable wrong where there is proof of maliciously obtaining a warrant or procuring a court order where it was so obtained without reasonable or probable cause for a malicious purpose. Though, the caution in Gibbs v Rea that it is rarely successful is noted and may explain the limited caselaw on warrants.
45. The dissenting judges in Gibbs v Rea cautioned about balancing the public interests for the police to investigate over the private right of an individual to seek redress for abuse of process by the tort of malicious prosecution. I find their commentary useful for public interest considerations and reproduce it below:-
" In our opinion, the greatest care must always be taken to strike the right balance between the public interest in the investigation of crime and the rights of the individual who is seeking to pursue a private law remedy... The court has a responsibility to ensure that the rights of the individual are respected at all times but it must be careful also not to hamper the police in their legitimate endeavours to seek out and to identify the criminal. The risk that if things go wrong the police will be exposed to a claim for damages for having acted maliciously is just one of the many hazards which they must face, but we should not like to see too easy a resort to this remedy."
[Emphasis added]
46. The tort of malicious prosecution provides a cause of action for persons subjected to arbitrary or malicious use of the State's prosecutorial powers to seek redress in filing civil proceedings against those who misuse the judicial process for ulterior motives. Police actions should therefore adhere strictly to the legal standards of reasonable cause and good faith. Manipulation of the legal system lies at the root of the tort. There is a need to balance the need for effective law enforcement with the protection of individual liberties and constitutional rights.
Application of the law to the facts
47. After consideration of the caselaw, I am of the view that the term 'prosecution' can be extended to include where the law is set in motion by the laying of an information to obtain a warrant of arrest resulting in a Court exercising judicial authority to issue a Court order in the form of the warrant of arrest.
48. I base this view on the Supreme Court decision in Eremas Wartovo v The State which acknowledges that the first stage of the criminal process is the investigation process. During the investigation process applications for warrants of arrest or search to the District Court, are some powers within the investigation toolkit of police officers to seek further information and evidence. It is obtained during the investigation stage and is usually granted ex parte, and is subject to the legal standard of demonstrating reasonable grounds to obtain the warrant. A detailed discussion of the procedure can be found in the decision of the Deputy Chief Justice in Vaki v Damaru.
49. Since I am of the view that there is a prosecution, the filing of the application by the first defendant and the granting of the warrant of arrest, means that the warrant of arrest is a Court order and must be executed by the first defendant and members of the police to whom the warrant was directed to.
50. Given that the warrant of arrest is a Court Order; an information that is laid or application is made without any reasonable and probable cause out of ill-will or spite, resulting in the issuance of the warrant, gives rise to the actionable wrong of maliciously procuring a Court order and breach of constitutional rights.
51. The Court also has a general duty to protect the integrity of its processes and must ensure genuine claims are progressed and claims that are an abuse of process are dismissed. See Thompson v Kalaut [2011] N4265.
52. Therefore, in this case, I am satisfied that the first defendant abused the District Court process by obtaining a warrant of arrest
against the plaintiff on baseless and personal grounds. There is no evidence that the plaintiff had committed a crime that would
require a warrant for his arrest. The issues complained of are administrative in nature, not criminal offences. The reasons stated
in the application of the warrant are personal, legally flawed and demonstrates that there was no reasonable or probable cause to
obtain the warrant and it was for a personal vendetta or grudge about his salary being ceased, rather than to prevent the commission
of a crime.
If the first defendant had reasonable cause, he would have executed the warrant or filed an affidavit in this proceeding to explain
his belief in the plaintiff's guilt about alleged offences that he supposedly committed. He did not.
53. I find that First Constable Matthew Vingome abused the Court's process by improperly applying for and obtaining the warrant for a purpose other than to execute the warrant to arrest the plaintiff for the commission of a crime. He improperly applied the law for a selfish purpose.
54. This case reveals that it is very easy for police officers to abuse their powers. The Police Commissioner should establish an internal control mechanism where all applications for warrants are verified as meeting the legal standard of reasonable ground before the application is filed in the District Court.
DECISION
55. I therefore answer the elements of the tort of malicious prosecution as follows:
(1) Was the first defendant responsible for the instituting, adopting or continuing of proceedings against the plaintiff?
Yes, the First Constable Matthew Vingome is responsible for institution and obtaining the arrest warrant against Slyvester Kalaut which remained open and unexecuted.
(2) Did the first defendant institute the proceeding without reasonable and probable cause?
Yes, First Constable Matthew Vingome's reasons for obtaining the warrant are personal, an administrative matter to do with his demotion and salary cessation and not a criminal matter.
Further, it is not a crime to file a lawsuit challenging an administrative decision of a public authority as was done by the plaintiff against the police commissioner.
Both reasons are baseless grounds and demonstrates malicious intent to improperly apply the criminal law.
(3) Was the first defendant motivated by malice or some other improper purpose?
Yes, First Constable Matthew Vingome was motivated to harm the plaintiff by the baseless reasons for obtaining the warrant by improperly using the District Court process to obtain the warrant to cause harm to the plaintiff. The warrant was not applied for its intended purpose to arrest the plaintiff and bring him before the District Court. It remained unexecuted for more than six months. The warrant is a court order and required obedience. It cannot be obtained without any intention to not execute it. The plaintiff is known, and it would not have been difficult to execute the warrant. Failure to do so demonstrates intent to improperly applying the law to achieve its purpose, which was to arrest the plaintiff. This is an abuse of the court's process and the Arrest and District Court Acts and amounts to malicious intent because the first defendant used his personal circumstance to harm the plaintiff by abusing the State's powers that were bestowed on him as a policeman under the Arrest Act.
(4) Was the proceeding resolved in favour of the plaintiff?
Yes, the warrant of arrest remained active as a Court Order pending execution at anytime and being a Court order could only be set aside or dismissed by another Court Order. This was finally done by the plaintiff when he applied for and obtained an order from the National Court which nullified the arrest warrant for 'apparent abuse of power' in proceeding OS 214 of 2021.
(5) Did the plaintiff suffer harm to his person, fame and property?
Yes, I accept the plaintiff's evidence that he suffered distress, humiliation and restriction of his constitutional right to decide freely without restrictions on his movement, by the outstanding warrant.
The warrant is a Court Order, which was open to have him arrested at any time.
I note the warrant was obtained around the same time the plaintiff was facing charges and challenging the appointment of the Police Commissioner as I have discussed in proceeding WS 13 of 2022. Slyvester Kalaut v Lucas Muka and Ors which concerned his criminal charges of 25 May 2020. It appears he was unduly persecuted in this case, and I accept his evidence of the harm suffered.
56. Having decided the cause of action in the tort of malicious prosecution; it is not necessary to address the tort of negligence. I accept Mr Samat’s submissions that even, if I were to do so, the police owe no duty of care when making decisions to investigate, arrest or charge, and the tort of negligence cannot stand. See Maku v Maliwolo [2012] SC1771.
JUDGEMENT
57. It is therefore my judgement that First Constable Matthew Vingome is liable for maliciously prosecuting the plaintiff, Sylvester
Kalaut.
First Constable Matthew Vingome committed the actional wrong of maliciously procuring a Court order without any intent to execute
it therefore improperly applying Section 8 of the Arrest Act and Section 49 of the District Court Act. He committed this wrong in the normal course of his duties.
His ultimate employer, the State is vicariously liable pursuant to the Wrongs (Miscellaneous Provisions) Act and the CBASA[5] for his tortious conduct.
Sylvester Kalaut’s constitutional right to freedom of movement was breached as a result of the warrant.
ORDERS
58. I hereby issue the following orders:
Judgement and Orders accordingly;
________________________________________________________________
Lawyer for the defendants: Solicitor General
[1] Court File document number 2.
[2] Filed 21 November 2022, Court file document No 2.
[3] See section 1 of the District Court Act.
Section 3.
[4] 20th edn (2010) published by Thomson Reuters Ltd, at pg 1072 paragrapgh 16-11.
[5] Claims By and Against the State Act 1996.
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