Nikints v Independent State of Papua New Guinea [1998] PGNC 7; N1683 (6 February 1998)

Unreported National Court Decisions

N1683

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 147 OF 1996
BETWEEN: MICHAEL NIKINTS
PLAINTIFF
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
DEFENDANT

Waigani & Goroka

Sawong J
9 December 1997
6 February 1998

Counsel

Maua for the Plaintiff

Polume Kiele for the Defendant

6 February 1998

SAWONG J: This was a trial of assessment of damages, judgement having being obtained by default. The plaintiff is claiming damages for alleged breached of his various constitutional rights. Specifically he is claiming damages for breaches of Constitutional right, including the rights to freedom from inhuman treatment, protection of the law, freedom for arbitrary search and entry, right to privacy and protection from unjust deprivation of property.

The issue is one of assessment of damages, default judgement having being entered against the defendants already.

The plaintiff relies on his two affidavits, (Ealibik P1 and P2) which he read in Court. He was also cross examined. The defendant called John Nawi who gave sworn oral evidence.

At this juncture, it is to be noted that none of the individual policeman allegedly involved were named as a party in the proceedings.

The allegations are that on several occasions, between 3rd January 1994 and 16 February 1994, Senior Constable John Nawi and other unidentified policemen unlawfully arrested and detained him unlawfully in the police cells at the Waigani Police Station. It is further alleged that during that period when he was unlawfully arrested and detained, he was assaulted. Furthermore the plaintiff alleges that on one other occasion, Nawi and others broke into the Plaintiff’s residence and stole the plaintiff’s personal property.

EVIDENCE

As I have stated earlier, the only evidence from the plaintiff himself. He read his affidavit evidence and was subsequently cross-examined.

In general he says he was unlawfully arrested by the senior constable Nawi and some unidentified policeman on several different dates. He also gave evidence that on those occasions, Nawi and others breached his Constitutional rights.

Before I consider the evidence, a preliminary point need to be resolved, which I have posed to counsel to address in their written submissions. The issue I have referred to was this. In view of the fact that John Nawi and others had not been named as parties in the proceedings, could an amount of damages be awarded against the State.

Both counsels have attempted to address this issue. However, both of them have missed the crux of the issue. Whilst I accept that default judgement has been obtained and entered against the State, it does not follow, in my view, that damages must also follow as a matter of course, against the State. However, as this issue has not been succinctly and clearly argued, I do not wish to say anything further on it. Suffice it is to say that the submissions that have been made are not applicable nor relevant to this issue.

I now turn to consider the evidence. I propose to deal with each allegation separately.

The first allegation relates to an incident that is alleged to have occurred on 4 January 1994. In relation to this incident he says that Nawi and others took him into the Waigani Police Station or no reason at all. There they locked him in the cell for 4 hours. Whilst in the police station Nawi and others assaulted him by punching him with their fists, kicking him with heavy boots, and hitting him with gun barrels. He says that after this he went straight to Chin H Meen Colour Lab at Boroko and took photographs of the injuries he sustained.

Senior Constable Nawi who gave sworn evidence, denied assaulting the plaintiff on the dates alleged. He gave evidence that the plaintiff and he are friends and they know each other. He says that on 24 December 1993, the plaintiff assaulted him. Consequently, he laid a complaint at the Waigani Police Station, where he was stationed, to have the plaintiff arrested. However the plaintiff insisted on the matter to be settled out of Court. Consequently, both of them agreed to settle the matter out of court, where upon the plaintiff wrote out a cheque of K120.00 as compensation. He said that on 8 January 1994, he told the plaintiff to come to the station in relation to the assaults.

Nawi said that after receiving the cheque (which was made payable to him), he took it to TST at Tokarara and cashed it. However when TST deposited the cheque the cheque was returned as valueless.

On 14 January 1994, Nawi says the plaintiff went to the Waigani Polie Station, where Nawi explained to the plaintiff regarding the previous cheque. The plaintiff then raised another cheque in the sum of K100.00 and paid it to Nawi, who cashed the cheque. He says he then took the plaintiff and others for lunch at the Kone Tigers club.

Senior Constable Nawi denies allegations relating to other occasions. He says he was not present on these occasions. He also denies taking any of the personal properties off the plaintiff as pleaded in the statement of claim and as stated in the plaintiff’s evidence.

In relation to the first incident I do not accept the evidence of the plaintiff for two simple reasons. The first is that there is simply no other evidence to support him at all. The photographic evidence do not support him at all. The photograph evidence were taken on or about February 1996 and not in January 1994.

Further, I find that the plaintiff was not prepared to tell the court why the police were looking for him or arrested him. No where in his evidence does he mention anything about the incident involving him and Nawi on 24 December 1993 and the cheque he wrote out. In so far as the evidence on these aspects are concerned, I prefer the evidence of Nawi than that of the plaintiff. It seems to me quite plainly that the plaintiff was prepared to hide evidence which might be adverse to him. He was prepared to give evidence about event which were favourable to his cause. In these circumstances, I reject his evidence as not being credible.

There is also no contemporaneous medical evidence of the alleged assaults etc. He is an educated man, and one would have thought that he would have made photocopies of such important documents before giving away the originals. That was not the case.

Furthermore, I consider the medical report of Dr Inaho to be little weight and relevance. Dr. Inaho’s report is dated 18 November 1996, nearly 3 years after the alleged incidents. There is no evidence connecting the alleged injuries between January 1994 and the report of November 1996.

In these circumstances, I am not satisfied that the plaintiff has proved any damages.

Consequently I award no damages. Costs should follow the event.