Kombea v Peke [1994] PGNC 34; N1275 (2 December 1994)

N1275

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

WS No. 302 of 1993

BETWEEN:

PAWA KOMBEA
Plaintiff

AND:

SEMAL PEKE
Defendant

WAIGANI: KAPI, DCJ
12, 16 August, 2 December 1994

J. Shepherd for the Plaintiff
No appearance by the Defendant

Pleading custom in a common law action.

Damages - Malicious Prosecution - False Imprisonment - Defamation.

Held:

1. Where an action in common law which is not yet part of underlying law is instituted, the question of custom must be pleaded to give effect to sch 2.2 (1) (c) of the Constitution.

2 December 1994

KAPI, DCJ: The Plaintiff sued the Defendant for damages under the following heads:

(a) Malicious prosecution

(b) False imprisonment

(c) Defamation

(d) Character assassination

(e) Breach of Constitutional rights

(f) Exemplary damages

(g) Special damages

(h) Interest

On 13 December 1993, default judgement was entered against the Defendant for failure to file a defence.

The matter has come before me for assessment of damages. At the hearing, I raised the question of the relevance of customary law. Under our law, an indigenous inhabitant of Papua New Guinea has a choice of law as between an action in common law, statute or customary law (Madaha Resena v. PNG [1991] PNGLR 174).

If, however, an action in common law is chosen, the applicability of common law is still subject to Sch 2.2 of the Constitution. Under Sch 2.2 (1) (c) common law is subject to the principles of customary law. In dealing with this issue I said in Madaha Resena v. PNG (supra) at pp 182 - 183:

"This means that where a common law action is instituted as a matter of choice, if a custom which is applicable to any of the parties in the action is shown to be inconsistent with the common law action, the common law principles in a particular case cannot be enforced. It is the duty of counsel to ensure that this inquiry is made before principles of common law can be adopted and enforced as part of the underlying law. Ultimately it is the duty of the Court to make this inquiry as was done in the case of Aundak Kupil and Kauke Kensi v. Independent State of Papua New Guinea.

Now in this case while the trial judge posed the right question he did not give any opportunity to any of the parties to assist him on the inquiry as to the existence of any principles of customary law. In my view, this is significant in this case as the claim was based and argued before the trial judge on the principles of common law and they gave no consideration at all to call any witnesses to give evidence of custom. In my view, had the parties being given the opportunity to do so, they would have led evidence relating to custom. The relevant custom in question is that of the Motuan people and there would be no difficulty in calling appropriate witnesses from villages around Port Moresby. No opportunity was given to any of the parties to call this evidence. This is not only contrary to principles of natural justice (ss 59, 60 of the Constitution) but a real and a meaningful effort must be made by the Courts to call for proof of evidence of custom."

I adjourned the case in order to give counsel for the Plaintiff in this case an opportunity to seek instructions on the question of custom. The parties in this case come from the same area in the Southern Highlands Province. Counsel for the Plaintiff has filed two affidavits; one by Aepa Pere of Karo Village Ialibu, Southern Highlands Province, a Village Court Magistrate since 1978 and Karu Opu, a leader from Ponegama Village Ialibu Southern Highlands Province.

Both witnesses deposed that the parties in this action speak the same language (Imbongu) and have the same customs and traditions. As I understand their evidence, there is no custom which would be inconsistent with the actions taken in common law in this case.

The right time in which to raise the question of custom is at the outset when a cause of action is instituted.

The most appropriate way to raise this issue would be by pleading the question of custom as a matter of fact in the pleadings (s 2 (1) Custom Recognition Act (ch 19). If there is any custom which may be relevant, it should be pleaded to indicate whether or not it is inconsistent with the principles of common law and equity. If there is no custom which is relevant that fact should also be pleaded.

In my view, it is necessary to raise the question of custom in the pleadings in all actions which are based on the principles of common law and equity (which are yet to be adopted as part of the underlying law) to give effect to Sch 2.2 (1) (c) of the Constitution.

In the present case, custom was not pleaded and when judgement was entered, it related only to the action brought in accordance with the principles of common law. As there is no relevant custom and as no issue was raised about the applicability and appropriateness of principles of common law, it will be adopted as part of the underlying law.

As I have pointed out earlier in the judgement, the plaintiff claimed damages under the heads - malicious prosecution, false imprisonment, defamation, character assassination, constitutional rights, exemplary damages, special damages and interest. At the hearing, counsel for the plaintiff abandoned the claims for exemplary damages, character assassination and breach of constitutional rights. The claim is therefore confined to a claim for malicious prosecution, false imprisonment, defamation, special damages and interest.

The Plaintiff comes from Kogibugl Village near Ialibu, Southern Highlands Province. He is aged about 47 years and he is a member of the Southern Highlands Provincial Assembly. He was first elected into the Assembly on 19 June 1980 and has been re-elected in successive elections until now. He is therefore the longest serving member of the Assembly. He is married with two wives according to custom. He has six children from the first wife and one child from the second wife.

The Plaintiff is educated and reached Grade 8 in Ialibu High School. He joined the Defence Force in 1964 and reached the rank of Corporal. After his discharge from the Defence Force, he worked as District Clerk in charge of Papua New Guinea Banking Corporation Agency at Ialibu. He served as Chairman for the Ialibu District Sub-Committee of the Constitutional Planning Committee until Independence in September 1975.

The Plaintiff served as President of the Ialibu Basin Association from 1972-1980. The Association represented the interests of local people in timber and forestry development projects in Ialibu District. The Association also acted as a lobby group to draw the National Government's attention to the need for more extensive educational and health services in the Ialibu District.

The Plaintiff was Chairman of Lama Sawmilling Company Pty Ltd at Ialibu from 1986-1989. He is also involved in the Ialibu Museum and Cultural Centre featuring artifacts and history of Ialibu District.

The Plaintiff also received an imperial award, an MBE for services to Provincial Government and the community.

It is clear from this that the Plaintiff is a man of some standing in his community.

It is the custom of people of Ialibu District that a leader may have more than one wife. Status of a leader in custom is determined amongst other things by the number of wives he has. The Plaintiff in February 1991 in accordance with his custom commenced an association with a 24 year old single girl Maria Mambo who comes from Iombi Village. This village is in the Constituency which is represented by the Plaintiff in the Assembly. By the end of February 1991, they had developed a relationship to the extent that they were planning to get married by December 1991.

The Defendant comes from Karel Village, Upper Mendi District. He is a business man operating a trades store at Mendi Township and runs a PMV business providing transport from Mendi to Lae via Ialibu and Mt Hagen.

On 13 September 1991 the Defendant was reported as visiting Maria Mambo at her parents house at Iombi Village. The Plaintiff confronted the Defendant that same evening and warned him to stay away from Maria. The Defendant did not leave. On 15 September 1991, the Plaintiff returned to Maria's house and found that the Defendant was still there. The Plaintiff then picked up Maria and took her away. She went with him willingly. Maria was with the Plaintiff all the time until she returned to her parents on 28 September 1991.

The Plaintiff was away from his house on the 18th and 19th September 1991. That on the 18th September 1991, Inspector Mark Yangen, the Station Commander at Mendi Police Station with other policemen carried out a search at the premises and office of the Plaintiff. According to the police, the Defendant had reported that the Plaintiff had a shotgun in his possession and that he abducted Maria from Iombi Village at gunpoint on the 15 September 1991. The police found no shotgun after the search. I accept that this report to the police was totally untrue. The residence of the Plaintiff is close to the market place at Ialibu and many people witnessed the incident. This definitely humiliated and upset the Plaintiff.

The whole episode was masterminded by the Defendant with the aim of humiliating the Plaintiff and with the aim of taking Maria away from the Plaintiff.

In October 1991, the Plaintiff was in Port Moresby completing travel arrangements to go to England at the invitation of the Papua New Guinea Culture and Tourism Cooperation to represent Papua New Guinea at the World Trade Fair to be held in December 1991.

On 1 November 1991 the Plaintiff drove to Mendi from Mt Hagen on a hired vehicle. He went there because of the political crisis on the position of the Deputy Premier. At about 5.30 p.m. as he was returning to visit a friend in Mendi, the Plaintiff was arrested by Inspector Yangen of Mendi Police Station. This arrest was prompted by a complaint laid by the Defendant that the Plaintiff had abducted Maria at gunpoint on 15 September 1991 at Iomba Village and that he had raped her. The Plaintiff was arrested and locked up in the Mendi Police cells. Bail was refused and was not given his right to make any communication with either his wife, relatives or a lawyer. He was specifically refused to make contact with lawyer David Lova who was staying at Kiburu Lodge at Mendi.

On Monday 4 November the Plaintiff was taken to the District Court. The Plaintiff was not granted bail and was further remanded in custody. Later that day Maria visited the Plaintiff in the cell and told him that all reports to the police were false and that she would be prepared to testify on his behalf in Court. By 4 November 1991, relatives, family members and political supporters had heard of the arrest and they came to visit him in Mendi. The Plaintiff was in custody until he was granted bail upon application made by David Lova on 14 November 1991.

As a result of this event, the matter became public knowledge and was the subject of daily news reports on the radio of the alleged offences. The matter was also reported in the Post-Courier and I have read the article "Ex-Premier on rape charge" which appeared on Post-Courier 14 November 1991. I accept that the allegations in the article were false and that the Plaintiff had not been a Premier of Southern Highlands. All of these reports brought shame and personal grief.

The Plaintiff's trip to England for the Word Trade Fair was almost cancelled because of these allegations and an application by the Plaintiff for a loan from the Agricultural Bank was refused on account of media reports of the alleged offences.

During the time the Plaintiff was in custody, he could not attend the Assembly sittings.

After the Plaintiff was granted bail, he attended the committal proceedings on 8 occasions, 18/11/91, 30/12/91, 28/1/92, 11/2/92, 16/7/92, 29/9/92, 20/10/92, 21/10/92. On these occasions, the matter was further adjourned because the Prosecution was not ready with the case. On the 23 October 1992, the District Court struck out the case. The Court records shows that the case was struck out on the basis that there was no evidence to support the allegations.

On 9 November, the Plaintiff was served with a civil summons dated 6/11/92, which the Defendant has caused to be served or issued at the District Court at Mendi. This summons claimed for K10,000 as cost of searching for Maria.

The Plaintiff subsequently defended the matter. On 25 November 1992, the Plaintiff obtained an order directing the Defendant to provide further and better particulars of the K10,000 claim. The case was adjourned to 14/12/92. The case was further adjourned to 12/1/93 to enable the Defendant to file further and better particulars. The matter was again further adjourned to 12/2/93. The Defendant filed a letter providing further particulars. The Plaintiff objected that the particulars were defective and the objection was upheld by the Magistrate. The matter was again adjourned to 30/3/93 for better particulars. The matter was further adjourned to 31/5/93, 7/6/93, 8/6/93 and 15/6/93. On 15 June 1993, the District Court dismissed the proceedings on the ground that the Defendant failed to provide better and further particulars.

In assessing the damages in this case, as in any general damages case, quantum of damages cannot be scientifically calculated. Where there are precedents the Court can get some assistance in determining the range of damages for the particular case. In respect of damages in this case under heads of claim, malicious prosecution and false imprisonment, there is very little guide in the local cases. I have therefore placed some reliance on the submissions of counsel for the plaintiff. In assessing the damages I have had regard to all the matters of fact I have set out in this case.

Malicious Prosecution

In assessing this head of damages, I have taken into account three components -

(a) damages arising as a result of search warrant

(b) damages arising in the criminal proceedings in District Court

(c) damages arising in the civil proceedings.

I assess the damages for this head as following -

- issue of the search warrants	K 2,500
- criminal proceedings	7,500
- civil proceedings	5,000
Total	K 15,000

False Imprisonment

The Plaintiff would be entitled to damages for false imprisonment at Mendi police cells from 1 to 4 November 1991. These four days imprisonment was as a direct result of instigation by the Defendant. I assess the damages at K4000.

Defamation

On this head of claim, counsel referred to local cases of damages ranging from K1000 in Tei Abal v. Anton Parao [1976] PNGLR to K4000 in Wague Gos v. Wess Zuidama [1978] PNGLR 361. I consider the defamation in this case is more serious and bearing in mind that I should not overlap this head of claim with malicious prosecution, I assess the damages at K10,000.

Special Damages

Counsel for the Plaintiff has led detailed oral and documentary evidence. I am satisfied with the figures submitted by Counsel for the Plaintiff. Counsel made some amendments to some of the items claimed and I have taken into account these changes in the final calculation. I assess the special damages at K21,198.67.

The Plaintiff will be entitled to the following damages.

(a)	Malicious Prosecution	K 15,000
(b)	False Imprisonment	K 4,000
(c)	Defamation	K 10,000
(d)	Special Damages	K 21,198.67

There will be judgement for the plaintiff in the sum of K 50,198.67

I award an interest of 4% on special damages from 6 November 1992, the date of Defendant's issue of civil claim against the Plaintiff.

I award an interest of 8% on general damages from the date of issue of the writ.

I further order that the Defendant pays the plaintiff's costs of this action.

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Lawyer for the Plaintiff: Shepherds