Yawi v Nenga [2002] PGNC 127; N2209 (24 April 2002)

N2209

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP NO. 1 OF 2002

BETWEEN:

KAWI YAWI
Applicant

AND:

TOREPA NENGA
First Respondent

AND:

ANTON SINAWAI
Second Respondent

AND:

THE STATE
Third Respondent

Mt. Hagen : JALINA, J.
2002 : 13th March
: 24th April

CONSTITUTIONAL LAW – Constitutional rights – Breach of – Police arresting Applicant but failing to lay charges – False imprisonment over 8 days – Damages to be assessed – Constitution ss.42 & 57.

Papua New Guinea cases cited:
Pawa Kombea –v- Semal Peke [1994] PNGLR 572

Counsels:
Mr. K. Sino for the Applicant
Mr. B. Ovia for the Respondents

24th April 2002

JALINA, J: On 2nd December 1999 the Applicant filed an application in this Court seeking to enforce pursuant to s.57 of the Constitutional breach of his Constitutional rights under s.42 over 8 days between 12th and 15th and 18th and 21st October 1999 through his detention in the police cells at Mt. Hagen. The acts that constituted the breach are set out briefly in his application:

"Did wilfully and unlawfully detain one Yawi Kawi at the Mt. Hagen Police Cells against his will for total of 8 days contrary to Section 42 of the Constitution, whereby he suffered loss and damage particularised in the Affidavit of claim attached."

He filed this application after police failed to lay any charges against him. Although there is affidavit evidence from both the First Respondent Torepa Nenga and the Second Respondent Anton Sinawai clearly showing that the Applicant was arrested for committing a criminal offence, no explanation has been offered by them as to why the Applicant was not charged. Such an explanation would have enabled me to determine whether or not the Applicant’s Constitutional rights were breached. However, in view of the admission of liability by the Respondents by order dated 13th March 2002, which was obtained by consent of counsel for both parties liability is no longer in issue. All I am required to do is to assess the appropriate amount in damages for unlawful detention or false imprisonment. But before I do so let me point out for the avoidance of doubt that the Applicant has pursuant to the same consent order, forgone his claim under paragraph 7 (b) and (c) of his affidavit which he filed on 4th January 2000.

Damages for Unlawful Detention or False Imprisonment

The Applicant has claimed K16,000.00 being K2,000.00 per day for the 8 days he was unlawfully detained or falsely imprisoned.

When I pressed the Applicant’s lawyer, Mr. Sino to refer me to any authority including case law to support the amount claimed by the Applicant, he could not do so. He however, referred me to Pawa Kombea -v- Semal Peke [1994] PNGLR 572 where Kapi DCJ awarded among things, K4,000.00 for false imprisonment at Mendi Police Station for 4 days from 1st to 4th November 1991. His Honour did not indicate whether the K4,000.00 for 4 days meant K1,000.00 was awarded for each day nor did His Honour make any detailed assessment to reach the figure of K4,000.00.

It has been submitted by Mr. Sino for the Applicant that in view of the decline in the value of the Kina as well the award in Kombea’ case being 8 years ago in 1994, K16,000.00 being K1,000.00 per day be awarded.

Mr. Ovia on the other hand has submitted that there was no really good reason or basis to award K16,000.00 at K2,000.00 per day. Such an award has not been proved.

Mr. Ovia further submitted that interest be not awarded as the Applicant has not claimed interest. A fair award, he submitted, would be K8,000.00 at K1,000.00 per day by inference from K4,000.00 for 4 days unlawful detention in Kombea’s case above.

I have considered the submission by both parties. I do not think that the mere fact that the Applicant was unlawfully detained for 8 days is sufficient ground for me to award K16,000.00 which in effect would be at the rate of K2,000.00 per day.

There is no evidence of any other unlawful act against the Applicant apart from detention. For me to award K16,000.00 being K2,000.00 per day by inference from Kombea’s case would seem to me to be a dangerous precedent as applicants who seek to enforce breaches of their constitutional rights particularly rights against unlawful detention in future would simply multiply K2,000.00 per day by the number of days in custody or detention. Taking judicial notice of the substantial decline in the value of the Kina so much so that the price of goods and services have increased dramatically, I would consider a global sum of K6,000.00 to be sufficient compensation for the unlawful detention or false imprisonment which I so award.

Interest has not been claimed so no award is made in that regard.

The Applicant’s costs shall be paid by the Respondent State to be taxed if not agreed.
_____________________________________________________________________
Lawyer for the Applicant : Kunai & Co. Lawyers
Lawyer for the Respondents : Solicitor General