Savurao v Sorum [1996] PGDC 3; DC4 (26 June 1996)

Unreported District Court Decisions

[1997] PNGDC 14 - JOHN SAVURAO V LAU SORUM & OTHERS

[1997] PNGDC 14

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

CASE NO 31 OF 1996

JOHN SAVURAO

COMPLAINANT

V

LAU SORUM

FIRST DEFENDANT

THE DEPARTMENT OF NEW IRELAND

SECOND DEFENDANT

NEW IRELAND INTERIM PROVINCIAL GOVERNMENT

THIRD DEFENDANT

Kavieng

Karapo PM

26 June 1996

INTERLOCUTORY APPLICATION TO DISMISS COMPLAINT - Cause of action - Illegal arrest - Jurisdiction of District Court - S. 21 (4) of the District Courts Act, Ch. No. 40.

Counsel

Mr Watt for the Complainant

Mr S Madana for the Defendants

RULING

26 June 1996

KARAPO PM:  This is a preliminary application by the Counsel for the Defendants seeking orders to have the complaint dismissed and further seek that the Complainant pay cost and such other orders as the Court deems fit.

Mr. Madana, Counsel for the Applicants/Defendants submitted that:

N2>1.       The complainant has no cause of action against the First Defendant because it was Constable George Cheppon and not the First Defendant Lau Sorum who had arrested and charged the Complainant for illegally selling of liquor.

N2>2.       The Complainant has no cause of action against the Department of New Ireland in the that the Department of New Ireland is not a legal person in law capable of suing and being sued.

N2>3.       The Complainant has no cause of action against the New Ireland Interim Provincial Government in that it’s servants who is the first named defendant was not the one who had arrested and charged the Complainant for illegally selling liquor.

N2>4.       The District Court has no jurisdiction to hear actions of illegal arrest.

Mr. Watt for the Complainant in response submitted that this matter involved Provincial Government Laws, that these Laws are administered by the Provincial Government and as such the First Defendant who was incharge of the Office is said to have arrested the Complainant.

The First defendant had assisted in the arrest of the Complainant and that the Complaint was properly laid against the employee of the Government.

He submitted that the preliminary application by the Defendants cannot be entertained and that substantive matter must proceed.

It appears the Laws we need to look at are these:

N2>(a)      Wrongs and Miscellaneous Provisions Act, Ch. No. 297; and

N2>(b)      District Courts Act, Ch. No. 40.

Section 1 of the Wrongs and Miscellaneous Provisions Act states:

N2>“(1)    Subject to this Division, the State  is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject:

(a)      in respect of torts committed by its servants and agents; and

(b)      in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer;

(c)      in respect of any breach of duties attaching under the underlying law to ownership, occupation, possession or control of property ...”

Therefore by virtue of Section 1 of the said Act it is the Independent State of Papua New Guinea who is liable to any wrongs committed by its servant and agents.

In this case the First Defendant is employed by the Provincial Government and is in my view a servant of the State.  However, the Independent State of Papua New Guinea is not name as a Defendant.

The Wrongs and Miscellaneous Provisions Act is irrelevant to this Complaint.  I see that there is no statute, nor principle of law cited as the basis for the Complaint.

I can also see that this is an action of illegal arrest and as such the question of jurisdiction is raised.

The District Courts Act states in Section 21(4)(d) as follows:

N2>“(4)    A Court has no jurisdiction in the following cases:

(a)      ...

(b)      ...

(c)      ...

(d)      an action for illegal arrest, false imprisonment or malicious prosecution.”

I noted that paragraph 8 of the summons claim general damages for illegal arrest and another inhuman treatments prohibited under the Constitutions of Papua New Guinea.  These are in my view Constitutional breaches and allegations of this nature can only be properly dealt with before the National Court and the Supreme Court.

Therefore, Sections 21 (4)(d) of the District Courts Act precludes this Court from dealing with this matter.

I consider further the submissions by Mr. Madana that there is no cause of action to claim specific damages because even though the Complainant was acquitted he was properly arrested on reasonable suspicion and that once arrested he was then given bail.

I agree with this submission because I see that it was up to the Complainant to answer his charge on those occasions his case was mentioned.  I cannot see how the Defendants should pay for the Complainant’s  travel expenses when he was on bail and had the freedom to move around.

On the question of cost, I considered that the Complainant in the substantive matter is represented by Mr. Watt for the Watt Lawyers and Associates. I have no doubt that the Complainant was properly advised but he chose and gave instructions to proceed in the manner he has.  He has chosen not to name the State in his action and instead named the three Defendants against each of whom he has no cause of action.

I consider that he has inconvenienced the Defendants unnecessarily and made them incur unnecessary cost in defending the proceedings.

I have no doubt Mr. Watt advised the Complainant of the clear legal position as to who to sue and in what Court he should commence his action, but it is obvious he disregarded the better advice of Mr. Watt.

For all these reasons, I grant the orders sought with costs.

Orders accordingly.

Mr Watt for the Complainant

Mr S Madana for the Defendants