Kombra v Supa [2019] PGDC 15; DC4026 (22 August 2019)

DC4026

PAPUA NEW GUINEA

District Courts Act, 1963

[In the Civil Jurisdictions of the District Court Held at Goroka]

DC No: 37 0f 2019

BETWEEN:
STANLEY KOMBRA
(Respondent/Complainant)

AND:
JOHN SUPA
(Applicant/Defendant)

Goroka: C Inkisopo

2019: 22^nd August

District Courts Act, 1963 – District Court a creature of Statute – its practice & procedure provided for, defined and demarcated by Act –

Practice & procedure - Ruling on an interlocutory application pursuant to s 22 of Act - District Courts’ general ancillary jurisdictions provision -

Practice & procedure - Application by Defendant to terminate proceeding for cause in proceedings for the time being before the District Court - s 22 of Act permits of such applications –

Claims By and Against the State Act (Claims Act) – Application to terminate proceeding for want of s 5 notice – s 5 notice requirement pre-requisite to suits against State in all circumstances – s 5 notice requirement where State not a Defendant – whether s 5 notice requirement necessary where State agent in the course and scope of official duties deviates to engage in a frolic and detours of his own to engage in unlawful and illegal conducts – State agent deviating from authorized scope of activity to engage in a frolic and detours of his own to commit unlawful acts to be personally liable -

Authorities, Legislations, Acts, Rules etc.

1: Claims By and Against the State Act, 1996

2: District Courts Act, 1963

PNG cases Cited

1: Jimm Trading Ltd -vs- Madison & Ors (2017) N6749

2: Paul Tohian & State -vs- Tau Liu (1998) SC 566

22^nd August, 2019

JUDGMENT

C Inkisopo: This is a ruling on an interlocutory application by the Defendant by way of a Motion on Notice filed dated 12^th August, 2019 in which he seeks to have the substantive cause of the matter of the Complaint/Summons filed by the Complainant to be dismissed for the stated cause of want of s 5 notice requirements pursuant to the Claims By and Against the State Act, 1996 (hereinafter called the Claims Act)

2: The Applicant/Defendant on 22^nd August, 2019 was allowed to move his Application and he did. Respondent/Complainant made his responding submissions before the Court and the Court heard both parties of their respective presentations.

Applicant’s Case

3: Applicant in his Affidavit filed in support of his Application claimed that the Complainant has filed and served this proceeding without first giving the required s 5 notice of potential claim on the State under the Claims Act; for he says he was a servant of the State acting within the scope of his duties when the alleged incident took place. He emphatically stressed that s 5 notice requirement is a condition precedent to filing suits against the State in all circumstances (Paul Tohian & Ors -vs- Tau Liu (1998) SC 566

4: This application seems on first sight to hold water; seeing that there is no evidence or material on file demonstrating such a s 5 notice having been served prior to filing this Complaint/Summons before this Court. That much, I tend to agree as being correct subject to the following discussions...

Respondent’s Case

5: The Complainant in response said that he did not see the need to observe the s 5 notice requirement because; even though Applicant at the material time he committed the alleged acts, was in Police uniform and tasked to protect and conduct crowd control duties during the game, such authorized duty did not include intentional destruction of properties, hurling insults and committing acts of unlawful assault. Defendant saw fit to deviate and detract from the scope of his official police duties of guarding and securing the Digicel Cup Rugby Match by committing illegal and unlawful acts which he argued were outside and beyond the scope of his official duties.

6: As a result, he argued strongly that he sued the Applicant personally as his only one and primary Defendant because he (Complainant) was not doing anything wrong or anything unseemly to have attracted Applicant’s wrath but merely taking pictures of the Digicel Cup Rugby game.

7: To put matters into perspective and proper context, a brief account of the background of this case is;

Applicant/Defendant; a senior Police man based at the Goroka Police Station was among a select group of Policemen and women who were tasked to conduct crowd control and general policing and security duties at the National Sports Institute (NSI) rugby oval during one of the regular weekend Digicel Cup scheduled matches hosted by the Goroka Lahanis Rugby League Team.

8: Respondent/Complainant was one of many hundreds of spectators who paid his relevant gate fees and had himself seated in the spectators’ stands amongst hundreds other spectators. As the game was progressing Complainant was said to be casually taking snap shots of the game on his mobile phone from where he was seated in the spectators’ stand like all other spectators who were doing the same as it was normal for people to take shots of their favourite players etc. It was a peaceful normal Sunday afternoon Digicel Cup Rugby game; there was no drama or anything unseemly and sinister about the game or such others like rowdy spectator misbehaviours etc. that day such that it would have likely drawn the Defendant’s attention.

9: Applicant/Defendant was at all material times said to be manning the sidelines between the playing field and the spectator’s stand whilst the game was progressing when he chanced upon the Complainant taking photographic snap shots of the rugby game on his touch-screen cell phone camera. At seeing the Complainant taking shots, Defendant is alleged to have become enraged, grabbed hold of the Complainant’s phone and smashed the same and allegedly violently assaulted the Complainant whilst hurling abuses accompanied with foul and vulgar “K” languages at the Complainant.

10: Complainant claimed that Defendant whilst destroying his touch-screen phone camera and assaulting him; demanded why he (Complainant) was taking pictures of him (Defendant). Complainant says he couldn’t say or do anything as the Defendant was very aggressive in his behaviour at the time and also being a policeman in full uniform, Defendant did what he did unabated and completely unrestrained.

Consideration & observation of Parties’ Respective cases

11: The facts surrounding this case are basically common and generally undisputed. All that the Applicant/Defendant is saying to what is alleged of against him to have done is that; he did what he is alleged of him to have done whilst in the execution of his lawful policing duties of crowd control at the games and therefore it was necessary for the State to be named as a Party which would naturally entail the need for compliance with the s 5 notice requirement of the Claims Act.

12: On the other side of the equation, the Respondent argues that Applicant engaged in unlawful and illegal conducts that did not and cannot fall into the category of lawful or permitted acts performed in and within the scope of his lawful policing duties; as for instance; destroying properties, assaulting and hurling abusive and insulting words; as in the instant case. Such a conduct Complainant said cannot be excused nor justified at law nor can they be condoned by the State as his employer to being lawfully done within the scope of official duties!

13: Hence Respondent/Complainant argued that Applicant/Defendant should be held personally liable for his own unlawful conducts and the State should have none of it.

11: It is almost becoming a settled law in this jurisdiction that “the employer or principal can only be liable for the acts of its employees if they act in the course of their employment pursuing their employer’s interest. If they went out on a frolic and detour of their own, they could be personally liable”. See Jimm Trading Limited -vs- Maddison & Ors (2017) N 6749 per Kandakasi, J. (as he then was).

11: Hence, in our instant case, Applicant whilst doing his policing duties of crowd control at a rugby match deviated and detoured to attack and destroy a spectator’s person and phone cannot in my humble view fall within the scope of his lawful authorised duties of crowd control when there was no evidence of a crowd riot at that point in time that would have prompted him to do what he did in his attempt to quell that situation. There was no such situation then existing to prompt Applicant to detour and did that which he is alleged to have done that are the subject of the present substantive proceedings.

12: His Honour Kandakasi J, (as he then was) correctly put this concept succinctly in the following way in Jimm Trading Ltd -vs- Maddison & Ors (supra)

“This means; where an employee or an officer of a company is in the course of his employment, pursuing his employer or principal’s business or interests and incurs a liability that liability becomes that of the company or the principal. The correct party should therefore be the company or the principal and not the employee or the officer”.

“If however, the employee or officer goes out on a frolic and detours of his own and incurs any liability, the employee becomes personally liable and is therefore the correct party to be named and not the company”. (Underlined in italics are my emphasis)

13: Accordingly; here we have a Defendant; a serving policeman who amongst others of his colleagues was entrusted with the task of keeping order and crowd control at the Goroka’s National Sports Institute (NSI) during one of the scheduled Digicel Cup inter-city rugby league games between a visiting provincial team and Goroka’s very own Lahanis Team. It was during this time it is alleged that the Applicant/Defendant seemingly resenting the Complainant taking snapshots albeit of the proceeding game on his touch-screen phone camera when Applicant allegedly set upon him and grabbed hold of the phone and destroyed it followed on with unlawful conducts of assault and insults.

14: The Applicant/Defendant in engaging in the alleged unlawful conducts was heard to be questioning as to why would a spectator take photographic images of him performing his duties as a policeman by taking pictures; because as he continued; unscrupulous people with ulterior motives take snap shots and crop such images and upload them on social media forums thereby painting bad pictures of the constabulary in general and the individual police personnel like him who most often than not get seriously disciplined. Hence, he says; because of this fact and the implication it entails, Applicant resented Respondent’s claimed taking of pictures of him and did what he did and did so in the course of his lawfully assigned duties.

Findings on Evidence

15: Having have assessed the parties’ respective cases I make the following observations;-

➢ Applicant was engaged in policing and crowd control duties at NSI during an inter-city rugby league Digicel Cup game at the material time.

➢ Respondent was one of the spectators seated in the spectator’s stands during the progression of the game and was taking snap shots on his touch-screen cell phone of the proceeding game.

➢ Applicant was performing his duties manning the sidelines between the playing field and the spectators’ stand.

➢ In the course of manning the game patrolling up and down the sidelines, Applicant caught sight of Respondent taking snap shots apparently of the proceeding rugby game.

➢ Applicant resented the Respondent taking pictures of the game seemingly thinking or assuming that Respondent was taking pictures of him (Defendant) reacted by grabbing hold of the Respondent’s touch-screen-phone and smashed it; and as if the phone destruction was not enough, Applicant proceeded to assault the Respondent whilst hurling abuses and insulting vulgar languages and “K” words to the Respondent. (“K” words in tok pisin being “kaikai kan” or “eat vagina”).

Conclusion

16: Having have made the above observations against the backdrop of primarily undisputed facts, the only rationale and logical conclusion open to be drawn in my view is:

Applicant went out beyond the scope of his lawful policing duties to unlawfully engage in illegal conducts that can hardly be considered acting within the scope of his lawfully assigned policing, security and crowd control duties at a then duly sanctioned inter-city rugby league Digicel Cup game at NSI.

Court Order/Ruling:

1: Application is refused and is dismissed for being misconceived and without merit;

2: The State is not and cannot be dragged in as a defendant party as Applicant detoured from his lawfully assigned policing duties to commit these illegal and unlawful acts that can hardly be considered to be acts committed within the scope of his lawfully assigned duties.

3: Applicant is correctly named and sued as the correct party to be answerable for his own actions.

4: Costs be in the cause

5: Orders accordingly.

______________________________________________________________________________

Appearances:

1: Respondent/Complainant - Self in person

2: Applicant/Defendant - Self in person

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