Kakipa v Nikilli [2002] PGNC 146; N5689 (8 November 2002)

N5689

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 311 of 1996

BEWEEN:

SERESA KAKIPA
Plaintiff

AND:

KAI NIKILLI
First Defendant

AND:

THE STATE
Second Defendant

Mt. Hagen: Gavara-Nanu J.
2002: 5, 6 & 8 November

PRACTICE AND PROCEDURE – Village Courts Act, 1989, ss. 61, 62 & 63 – Village Court have no powers to imprison – Warrant of Commitment issued by the Village Court to imprison – Such warrant is void and having no legal effect.

PRACTICE AND PROCEDURE – Village Courts Act, 1989 – Arrest, detention and imprisonment following Orders by the Village Court – False imprisonment – Meaning of false imprisonment.

PRACTICE AND PROCEDURE – Village Courts Act, s. 109 – Indemnity to Village Court Officials and other persons acting under or for the purposes of the Act – Whether acts or omissions made in good faith – Meaning of 'good faith'.

DAMAGES – General damages – Plaintiff's arrest, detention and imprisonment being without reasonable and probable cause.

DAMAGES – Exemplary damages – The Court's discretion to award exemplary damages – Exemplary damages awarded to reflect Court's condemnation of the outrageous and illegal actions amounting to infringement of plaintiff's basic rights – Constitution, s. 58 – Wrongs (Miscellaneous Provisions) Act, Chapter 297, ss. 1 (1) (a) and (4), discussed.

DAMAGES – Vicarious liability of the State – The actions of servants and agents of the State – Police raid of a village– Destruction and damage caused to houses and personal property of the plaintiff.

Facts

On or about 12th September, 1993, the plaintiff was ordered by the first defendant who was a Village Court Magistrate in Kindarep in Enga Province to pay K100.00 compensation to her husband for assaulting him. On 6th May, 1994, a policeman attached to Laiagam Police Station arrested the plaintiff and detained her at Porgera Police Station for not paying K1,000.00 compensation to her husband. This was contrary to the order given by the Kindarep Village Court on or about 12th September, 1993.

The plaintiff was later transferred to Laiagam Police Station where she was detained for about a week before being transferred to Baisu Gaol in Western Highlands to serve six months imprisonment ordered by Liop Village Court also in Enga Province.

When the plaintiff was detained at Laiagam Police Station, her brother tried to bail her with K500.00 but police refused bail.

The plaintiff was imprisoned for six months at Baisu under a Warrant of Commitment issued by the Liop Village Court. This warrant was endorsed by the Laiagam District Court for not paying K1,000.00 compensation to her husband, although no such order was made by the Kindarep Village Court. The only order the Kindarep Village Court made on or about 12th September, 1993, as noted earlier was for the plaintiff to pay K100.00 compensation to her husband. When the plaintiff was in Baisu Gaol she was with her seven month old child.

The plaintiff got very sick while in gaol and was admitted at the Mt Hagen General Hospital. She stayed at the hospital until 15th October, 1994, when she escaped.

Held:

1. The Village Courts have no power to order imprisonment under the Village Courts Act 1989. The Warrant of Commitment issued by Liop Village Court for the plaintiff to be imprisoned for six months at Baisu Gaol is void and is of no legal effect.
   
2. The Liop Village Court had no power to imprison the plaintiff, thus the plaintiff's arrest, detention and subsequent imprisonment amounted to false imprisonment.
   
3. The defendants did not act in good faith thus they were not indemnified for their actions under s. 109 of the Village Courts Act 1989. The defendants infringed the plaintiff's rights to liberty and a fair hearing, thus are liable to pay damages, including exemplary damages to the plaintiff. Abel Tomba –v- The Independent State of Papua New Guinea SC598 and James Koimo –v- The Independent State of Papua New Guinea [1995] PNGLR 535, discussed.
   

Cases cited:

Papua New guinea Cases

Abel Tomba –v- The Independent State of Papua New Guinea SC 518
James Koimo v. The Independent State of Papua New Guinea [1995] PNGLR 535
MVIT v. John Etape [1994] PNGLR 596
Pawa Kombea v. Semal Peke [1994] PNGLR 572
PNGBC v. Jeff Tole SC694
Rimbink Pato -v- Umbu Pupu [1986] PNGLR 310
Sangara (Holdings) Limited -v- Hamac Holdings Limited (In Liquidation) [1973] PNGLR 504
The State v. Kofowei [1987] PNGLR 5
Yawi Kawi MP. No. 1 of 2000.

Other cases cited:

Jesse Jones v. John Gordon (1876-77) 2 App. Cas. 616
Tatam v. Hasler & Anor [1889] UKLawRpKQB 111; (1899) 23 Q.B.D. 345
Watson v. Marshall & Cade [1971] HCA 33; (1970-71) 124 C.L.R. 621

Legislations & Text Books cited:

Arrest Act, Chapter No. 339
Bail Act, Chapter No. 340
District Courts Act, Chapter No. 40
Claims By and Against The State Act, 1996
Constitution of the Independent State of Papua New Guinea
Constitutional Planning Committee Report
Principles of Practice and Procedure by O'Leary Hogan,(Butterworth), 1976
Village Courts Act, 1989
Wrongs Miscellaneous Provisions Act, Chapter No. 297

Counsel:

P. Dowa, for the plaintiff
B. Ovia, for the defendants

8th November, 2002

1. GAVARA-NANU J: The plaintiff claims damages against the defendants for malicious prosecution and false imprisonment. The claims arise from her arrest by the defendants' agents on 6 May, 1994 and her subsequent detention at the Laiagam and Porgera Police Stations, then her subsequent imprisonment for six months at Baisu Gaol in Mt. Hagen in June, 1994. The plaintiff is a simple village woman from Enga Province. When in gaol she had her infant child aged seven months with her. The plaintiff's arrest, detention and the subsequent imprisonment were a result of plaintiff's alleged failure to comply with the orders made by the first defendant who was a Village Court Magistrate in Kindarep in Enga Province. As will be seen later, the plaintiff was imprisoned for failing to pay K1,000.00 in compensation to her husband, although the actual order by Kindarep Village Court was for the plaintiff to pay K100.00 compensation to her husband.
   
2. The plaintiff claims that her arrest, detention and subsequent imprisonment were wrongful and without reasonable and probable cause. Thus she claims she was unlawfully deprived of her liberty.
   
3. In her affidavit sworn on 15 February, 1996, the plaintiff deposed that she was 35 years old. She would therefore be about 41 years old now. In the affidavit, she also deposed that she was married in 1972. Assuming the age she gave in her affidavit is correct, she would have got married at the age of about 11. To my assessment of her age she appeared to be much older than the age she gave. I think she is either in her mid or late 40s. Thus, at the time of her arrest on 6 May, 1994 and her subsequent imprisonment at Baisu Gaol in June 1994, she was a middle aged woman. There is evidence that she has seven children. That in my view lends support to my assessment of her age.
   
4. The brief background facts are as follows. On or about 12 September, 1993, the plaintiff and her husband had an argument which led to them assaulting each other. The husband subsequently laid a complainant with Kindarep Village Court against the plaintiff for assault. The plaintiff later appeared before that Village Court which was presided by the first defendant. After deliberating on the complaint, the first defendant ordered the plaintiff to pay K100.00 compensation to the husband, and the husband was ordered to pay K150.00 compensation to the plaintiff. They were also ordered to each pay K10.00 fine. The plaintiff paid the fine but not the K100.00 compensation to her husband.
   
5. The order by Kindarep Village Court is annexed to the plaintiff's affidavit as Annexure 'A". That order does not bear any date therefore it is not known when it was made. However, the order indicates that the plaintiff and her husband were ordered to go back to Kindarep Village Court on 28 September, 1993, to make their respective compensation payments before the Village Court Magistrate. So going by the order and all the materials before the Court the order by Kindarep Village Court was made on or about 12 September, 1993.
   
6. After Kindarep Village Court made the above orders, the plaintiff went to her brother in Porgera to ask for financial assistance to help her pay the K100.00 compensation to her husband. In her affidavit she deposed that she stayed in Porgera until the end of April, 1994, when a Warrant of Commitment issued by Liop Village Court and endorsed by Laiagam District Court was served on her by a policeman from Laiagam Police Station. The warrant was for her to be committed to Baisu Gaol to serve six months imprisonment for failing to pay K1,000.00 compensation to her husband. As I alluded to earlier, the Kindarep Village Court, did not make such an order, the only order the Kindarep Village Court made was on 12 September, 1993, when she was ordered to pay K100.00 compensation to her husband. She also deposed in her affidavit that the policeman who served the Warrant of Commitment on her at Pogera told her that if she did not pay K1,000.00 compensation to her husband, she would be immediately imprisoned for six months. She says, she pleaded with the policeman to allow her to pay K100.00 compensation to her husband as ordered by the Kindarep Village Court because she had seven children to look after and she had her infant child with her. Despite her pleas she was arrested by the policeman on 6 May, 1994, and detained with her child at Porgera Police Station for two days. She was later transferred to Laiagam Police Station where she stayed until 14 May, 1994, when she was transferred to Baisu Gaol to serve six months imprisonment for failing to pay K1,000.00 compensation to the husband.
   
7. The plaintiff told the Court that she did not know why and when the Warrant of Commitment was issued against her by the Liop Village Court because she never appeared before that Village Court. The only time she was before a Village Court was on 12 September, 1993, when she and her husband appeared before the Kindarep Village Court and that was when they were ordered to compensate each other with K100.00 and K150 respectively for assaulting each other and for each of them to pay a fine of K10.00.
   
8. While at Baisu Gaol, the plaintiff fell ill and was taken to the Mt Hagen General Hospital where she was admitted.
   
9. A medical report prepared by Dr. J. Kintiwa for the plaintiff dated 8 May, 1995, which is annexed to the plaintiff's affidavit as Annexure 'C' indicates that the plaintiff was admitted at the Mt Hagen General Hospital on 26 September, 1993, she was suffering from pain and swelling in one of her knees. That report indicates that the plaintiff development knee arthritis and aspirated pussy fluid in the knee joint, she was treated with antibiotics. The report says the plaintiff escaped from the hospital on 15 October, 1994, thus by that date, she had spent about three weeks in the hospital. It appears that there were no CIS officers guarding the plaintiff in the hospital.
   
10. The brother of the plaintiff, Joseph Paul who gave evidence for the plaintiff confirmed that the plaintiff visited him in Porgera after her court case in September, 1993 to seek financial assistance. He said he gave her K110.00. In his affidavit, he also deposed that when the plaintiff was being held at Laiagam Police cells he went and asked the police to bail her with K500.00 but the police refused bail. He deposed that the plaintiff was in good health before her imprisonment.
    
11. Both counsel agreed on the following matters:
    
    1. Kindarep Village Court ordered the plaintiff and her husband to go back to the Court on 28 September, 1993 and compensate each other with K100.00 and K150.00 respectively; and
       
    2. Under the Village Courts Act, 1989, Liop Village Court did not have power to order the plaintiff to be imprisoned.
       
12. In view of this concession by Mr Ovia of counsel for the defendants, I asked him whether the defendants also concede that the plaintiff is entitled to the damages she is claiming. In other words, whether the defendants would admit liability. Mr Ovia submitted that the plaintiff is not entitled to damages because s. 109 of the Villages Courts Act, indemnifies the Village Court officials including Magistrates from being liable for any wrongful acts they may have committed.
    
13. The plaintiff is claiming damages for false imprisonment and malicious prosecution, but I think her claim is essentially for false imprisonment. In order to determine whether she is entitled to damages for false imprisonment, it is convenient to define 'false imprisonment' and see whether the facts establish false imprisonment. And if so, whether the defendants are indemnified from paying damages to the plaintiff under s. 109 of the Village Courts Act.
    
14. I find the definition of 'false imprisonment' given by; O'Leary Hogan in his book titled: "Practice and Procedure" Butterworth, 1976, helpful and sufficient for the purposes of this case. The learned author defines 'false imprisonment' at paragraph 12.601 as:
    

"A false imprisonment is complete deprivation of liberty for anytime, however short without lawful excuse."

15. See, also Watson v. Marshall & Cade [1971] HCA 33; (1970-71) 124 CLR 621 at 640, a case the learned author refers to as the supporting authority.
    
16. So the question is: was the plaintiff falsely imprisoned? To answer this question, it is convenient to also look at the penalty provisions in the Village Courts Act, which set out the types of penalties a Village Court can impose. The relevant provisions are ss. 61 to 63. These sections provide that the penalty for failure to pay compensation ordered by a Village Court is community work not exceeding six months. The sections further provide that a Village Court may also order execution against goods and chattels of the person ordered to do such community work. If the person failed to comply with such orders, a fine of K50.00 for each week of community work not performed should be imposed against such person.
    
17. There is no provision in the Village Courts Act, which empowers a Village Court to order imprisonment. It therefore follows that arrest and detention of the plaintiff at Pogera and Laiagam Police Stations and her subsequent imprisonment at Baisu Gaol for six months were unlawful. It also follows that such arrest, detention and imprisonment amounted to false imprisonment. The plaintiff was deprived of her liberty during those periods by the defendants and their agents without lawful excuse.
    
18. Should the Court then order the defendants to compensate the plaintiff in damages for false imprisonment? Or are the defendants indemnified and immuned from paying such damages under to s. 109 of the Village Courts Act?
    
19. Section 109 of the Village Courts Act, indemnifies the Village Court officials and other persons acting under or for purposes of the Act. Under this section such officials and or persons cannot be held liable for their actions or omissions which were done or made in the execution of their duties and if such actions or omissions were done in good faith. The critical words in the section are "in good faith".
    
20. Section 109 of the Village Courts Act is in these terms:
    
    109. Indemnity
         
    • (1) A Village Court Official or other person acting under or for the purposes of this Act is not liable for any act done or any omission made in good faith for the purposes of this Act, whether or not the act or omission was within his lawful purposes or jurisdiction.
      
    • (2) The burden of proof of a lack of good faith is on the person who relies on the fact.
      
21. The section is clearly designed to protect the Village Court officials from any claims for damages resulting from their actions or omissions which are done or made in good faith while performing their duties under the Village Courts Act. It follows that if such actions or omissions are not done or made in good faith, then they would be liable for any claims for damages resulting from their actions and or omissions.
    
22. Mr. Ovia also submitted that there is an apparent inconsistency between paragraphs 6 and 12 (g) of the plaintiff's affidavit. He argued that the plaintiff in paragraph 6 says she was served with a Warrant of Commitment but later in paragraph 12 (g) says the CIS officials at Baisu did not show her the Warrant.
    
23. I do not see any inconsistency between the two paragraphs. But even if there is such an inconsistency, I do not think it would make any difference because even if the Warrant had indeed been issued by the Liop Village Court and endorsed by the Laiagam District Court Magistrate, they had no powers to issue and endorse the Warrant for the plaintiff to be imprisoned. Moreover, the policeman who served the Warrant on the plaintiff and subsequently detained her had acted without lawful authority.
    
24. The plaintiff's evidence regarding her detention at Laiagam Police Station had been corroborated by her brother. This clearly shows that police at Laiagam Police Station were directly involved in her arrest, detention and subsequent imprisonment.
    
25. It is noted that the defendants in paragraph 3 of their Defence deny paragraphs 4, 5, 6, 7, 8, 9 and 10 of the plaintiff's Statement of Claim. They claim that plaintiff was arrested and imprisoned for disobeying a Village Court Order given on 12 May, 1994. The defendants also raise other issues in paragraphs 4, 5, 6 and 7 of their Defence. In paragraph 4 the defendants give particulars of an order allegedly made by the Laiagam Village Court on 12 May, 1994, which the defendants claim was a preventive order. In paragraph 4 (b) the defendants claim that on 6 June, 1994, an order was made for the plaintiff to be imprisoned for six months for allegedly disobeying the preventive order. In the same paragraph the defendants claim that the plaintiff was arrested on 23 June, 1994. In paragraph 4 (e) the defendants claim that the plaintiff did as ordered by the Village Court to serve six months imprisonment in Baisu Gaol until her official date of release on 15 October, 1994. Notably though, this is the date when the plaintiff escaped from the Mt Hagen General Hospital.
    
26. In paragraph 5, the defendants claim that plaintiff was taken to Mt Hagen General Hospital where she was admitted after she complained of being ill. In paragraphs 6 and 7, the defendants claim that the plaintiff remained at the Mt Hagen General Hospital until 15 October, 1994, when she was released from Baisu Gaol.
    
27. Unlike the plaintiff, the defendants have not adduced any evidence in support of the matters they pleaded in their Defence. The Warrant of Commitment, the preventive and the arrest orders supposedly given by the Village Courts upon which the defendants placed reliance were not produced to the Court. The plaintiff's evidence in that regard remains uncontroverted. In any event, I find that the defendants' Defence has serious flaws, they claim that the preventive and arrest orders against the plaintiff were made on 12 May, 1994 and 6 June, 1994, respectively. However, these dates conflict with the sworn evidence of the plaintiff which indicates that she was arrested on 6 May, 1994.
    
28. Paragraph 4 (e), 5, 6 and 7 of the defendants' Defence allege that the plaintiff was to serve six months imprisonment at Baisu Gaol until 15 October, 1994, but because she was ill, she was admitted at Mt Hagen General Hospital on 26 September, 1994. They claim that she stayed at the hospital until 15 October, 1994, when she was officially discharged as a prisoner.
    
29. I find these aspects of the defendants' Defence lacking merit for two reasons. Firstly, the plaintiff's medical report clearly shows that she absconded from the hospital on 15 October, 1994, she was not discharged as claimed by the defendants. Secondly, when one calculates the number of months from 6 June, 1994, to 15 October, 1994, it is just over four months but less than six months. Further still, when one calculates the number of months from 23 June, 1994, to 15 October, 1994, it is even less than four months. These as I said are serious flaws in the defendants' Defence. This evidence proves that the plaintiff did not serve six months because she absconded. Moreover, it is common knowledge that prisoners who get admitted in hospitals due to illnesses do not get discharged from their hospital beds. They have to return to gaols to be properly discharged. This leads to only one inescapable conclusion, viz, the defendants have made false claims in their Defence thus rendering their Defence a sham.
    
30. The onus is on the defendants to prove their assertion that the plaintiff's arrest, detention and subsequent imprisonment at Baisu Gaol were lawful and justified. They have failed to discharge that onus.
    
31. There is one other point I wish to make regarding the purported preventive and arrest orders allegedly issued by the Kindarep and Liop Village Courts on 12 May, 1994 and 6 June, 1994, respectively against the plaintiff. A preventive order could only be made under s. 51 of the Village Courts Act, for purposes of maintaining peace and harmony in the community in the event of a dispute involving the plaintiff. In other words, before a preventive order could be issued, there had to be a dispute involving the plaintiff and that the dispute was likely to cause breach of peace. There was no such dispute in this case.
    
32. Section 51 (3) of the Village Courts Act, provides that, if a preventive order is disobeyed and the charge is brought before a Village Court, the penalty is community work not exceeding six months. But if the charge is brought before a Local Court, the penalty is a fine not exceeding K1,000.00, or imprisonment for a term not exceeding six months, or both. So the power to imprison could only be exercised by a Local Court, not a Village Court. This again confirms that Kindarep and Liop Village Courts had no power to order the plaintiff to be imprisoned.
    
33. Under s. 65, of the Village Courts Act, a District Court can endorse an order given by a Village Court, but only upon it being satisfied that the Village Court had acted within its powers. Thus, if there is evidence that a Village Court had exceeded its powers in making an order, then any endorsement of such an order by a District Court would also be void of any legal effect. It follows that in this case, the endorsement of the plaintiff's purported Warrant of Commitment by Laiagam District Court was void of any legal effect.
    
34. Turning now to s. 109 of the Village Courts Act, the indemnity given by this section to the Village Court officials or other persons acting under or for purposes of the Village Courts Act, is dependent on those officials or persons acting "in good faith" and discharging their duties properly and lawfully. Sub-section (2) provides that the burden of proving that there was lack of good faith lies with the person who asserts it. In this case, it is the plaintiff who must prove that the Village Court officials and the policeman who dealt with her did not act in good faith.
    
35. PART-IV of the Village Courts Acts, deals with the 'Village Court Officials' and Division 1 deals with the 'Provincial Supervising Magistrates' and Village Court Magistrates. Pursuant to this Part, the Provincial Supervising Magistrates and other District Court Magistrates who exercise power under the Village Courts Act, are for purposes of the Village Courts Act, deemed to be Village Court officials. Thus the Laiagam District Court Magistrate who endorsed the Warrant of Commitment was a Village Court official for purposes of s. 109. Even if I am wrong on this point, such a District Court Magistrate would in my opinion still fall within the definition of 'other persons' in the section.
    
36. I have already found that the plaintiff's arrest, detention and the subsequent imprisonment amounted to false imprisonment. But the question still remains whether those Village Court officials acted in good faith when they arrested, detained and imprisoned the plaintiff, to claim immunity under s. 109. The same is asked of the policeman who served the Warrant of Commitment on the plaintiff and arrested and detained her, as he was 'a person' purportedly acting for purposes of the Village Courts Act.
    
37. Although, the actions of the defendants and the Village Court officials did amount to false imprisonment, if such actions were done in an honest but mistaken belief, then in my view, they should be entitled to claim immunity under s. 109. But, if they knew that their actions were wrong and unlawful, then they must be held liable for their actions, as such actions could not have been made in good faith: Sangara (Holdings) Limited –v- Hamac Holdings Limited (In Liquidation) [1973] PNGLR 504. This case discusses the meaning of "good faith" and states that there must be an element of dishonesty in the conduct of an offender or offenders, for the court to conclude that it was not done in good faith: Rimbink Pato –v- Umbu Pupu [1986] PNGLR 310; Jesse Jones –v- John Gordon [1877] UKLawRpAC 14; (1876-1877) 2 App. Cas. 616 and Tatam –v- Hasler 7 Anor [1889] UKLawRpKQB 111; (1889) 23 Q.B.D. 345.
    
38. Having regard to these principles, I find that the Village Court officials, including the policeman, acted dishonestly in the arrest, detention and the subsequent imprisonment of the plaintiff at Baisu Gaol, thus they did not act in good faith.
    
39. I find that s. 109 of the Village Courts Act is akin to s. 256 of the District Courts Act. The latter in part reads:
    

"In an action against a Magistrate for an act done by him in the execution of his duty as such, or in his capacity as such, it must be expressly alleged in the statement of claim, or complaint that the act was done maliciously and without reasonable and probable cause, and if allegations are denied and at the trial of the action the plaintiff fails to prove them, judgement shall be given for the defendant."

40. Under this provision, a District Court Magistrate can be sued for his actions while in the execution of his duties, if such actions were malicious and unlawful and were done without reasonable and probable cause.
    
41. In this case, the defendants acted dishonestly. The end result is they are liable to the plaintiff for damages.
    
42. That said, it is also noted that the defendants have not pleaded s. 109 of the Village Courts Act, in their Defence as required by Order 8 r 14 of the National Court Rules. This effectively prevents the defendants from relying on it: MVIT –v- John Etape [1994] PNGLR 596 and PNGBC –v- Jeff Tole SC694.
    
43. There is another point to be made in respect of the first defendant. Pursuant to Schedule 1.2 (1) of the Constitution, the Village Court Magistrates are not judicial officers. Thus, the purported issuance of the Warrant of Commitment for the plaintiff to be imprisoned at Baisu Gaol was not a judicial act immune from any civil claim. Furthermore, by virtue of s. 174 of the Constitution, Village Court Magistrates do not come under Magisterial Services. As to the State being held vicariously liable for the actions of the first defendant, the issuance of the Warrant of Commitment, albeit wrongly made, was to administer the Village Courts Act, on behalf of the State. The State is generally responsible for any wrongs committed by the Village Court Magistrates. The State in this case cannot rely on s. 1 (6) of the Wrongs (Miscellaneous Provisions) Act, Chapter No. 297, ("the Wrongs Act) to avoid liability. The section provides:
    

(6) Proceedings do not lie against the State by virtue of this section in respect of anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of judicial nature vested in him, or responsibilities that he has in connexion with the execution of judicial process.

44. The State cannot raise immunity under this provision for the first defendant because he was not a judicial officer. The first defendant is a servant of the State and the State is vicariously liable for damages suffered by the plaintiff from the actions of the first defendant.
    
45. As to the policeman who arrested the plaintiff, he is also a servant of the State. The State is therefore again vicariously liable for his actions: The State -v- Kofowei [1987] PNGLR 5, in that case the Supreme Court at page 10 in affirming this principle said:
    

"So as member of the State Service (Police Force) there cannot be any doubt that a policeman is both an officer and a servant of the State. The fact that some of his responsibilities are conferred on him by statute or the underlying law does not affect this status of being a servant and officer of the State."

46. See, also James Koimo –v- The Independent State of Papua New Guinea [1995] PNGLR 535 at 543.
    
47. For the forgoing reasons, I find that the defendants are liable to the plaintiff for damages.
    

Damages:

1. General damages
   

48. In determining general damages for the plaintiff, I have taken into account the period in which she was arrested and detained, viz; from 6 May, 1994 to 15 October, 1994. I have adopted 6 May, 1994, as the plaintiff's date of arrest because that is the date the plaintiff said she was arrested. This evidence is not challenged by the defendants.

49. I have also included the period the plaintiff spent in the hospital, which is from 26 September, 1994 to 15 October, 1994. This period was part of her false imprisonment because she was still regarded as a prisoner by the defendants up to that date.

50. Thus the total period of her false imprisonment is calculated at 5 months, 1 week and 2 days.

51. I accept the plaintiff's evidence that she became very ill while she was in goal and had to be admitted to the Mt Hagen General Hospital. I also accept the plaintiff's evidence that she was not sick before her imprisonment. The illness is therefore a relevant factor to take into account when deciding her damages.

52. Mr. Ovia cited the case of Yawi Kawi, MP. No. 01/00, in that case the plaintiff was awarded K6,000.00 for being held in the police cells for six days. Mr Ovia also cited the case of Pawa Kombea v. Semal Peke [1994] PNGLR 572, in that case, the plaintiff was awarded K4,000.00 for spending four days in police cells.

53. Mr. Ovia submitted that in this case, K10,000.00 would be sufficient compensation for the plaintiff. Mr. Dowa on the other hand submitted that an amount between K25,000.00 to K50,000.00 would be a fair compensation for the plaintiff.

54. Having regard to the circumstances of the case and the principles applied in the cases cited above, I consider that K25,000.00 is a fair compensation for the plaintiff and I award this amount to the plaintiff in general damages.

2. Exemplary damages
   

55. The plaintiff has also claimed exemplary damages. These damages are punitive in nature as their purpose is to punish the wrong doer. They are relevant in cases where there had been a continuing breach and disregard of the plaintiff's rights. They are also a reflection of the Court's condemnation of outrageous and illegal actions of a defendant. The Court has a wide discretion in deciding exemplary damages. The discretion must be exercised judicially and properly. The Court has been referred to the Supreme Court decision in Abel Tomba –v- The State SC518, which discussed the relevant principles relating to the question of whether exemplary damages should be awarded for the tortuous actions of the servants of the State and whether exemplary damages should be awarded at all.

56. In the instant case, there is overwhelming evidence of the total disregard and violation of the plaintiff's rights to liberty and fair hearing by the defendants. The actions of the defendants and or their agents were oppressive, arbitrary and unconstitutional: James Koimo –v- The State (supra). In the circumstances, I consider that exemplary damages should be awarded to the plaintiff.

57. In James Koimo –v- The State (supra), Injia J. (as he then was) held, inter alia, that exemplary damages would lie where the action complained of has infringed upon a constitutional right of the plaintiff. In this case, there cannot be any doubt that plaintiff's guaranteed right to liberty under s. 42 of the Constitution was infringed by the actions of the defendants. Other than these breaches, the defendants had also breached s. 3 of the Arrest Act, Chapter No. 339, when the policeman arrested the plaintiff on 6 May, 2002, because the arrest was made without a warrant of arrest. The plaintiff could only be lawfully arrested without a warrant if she was about to commit an offence or had committed an offence or was committing an offence. There is no evidence that any of these situations existed. The plaintiff's right to the protection of the law as provided under s. 37 (1) of the Constitution was also infringed by the actions of the defendants. The defendants had also acted contrary to ss. 5 and 9 of the Bail Act, Chapter 340, and s. 42 (6) of the Constitution, when the police at Porgera Police Station refused to grant bail to the plaintiff.

58. In determining the issue of exemplary damages, I find James Koimo –v- PNG (supra) and Abel Tomba –v- The State (supra) helpful. In his judgment in James Koimo –v- PNG (supra), Injia J. referred to a number of National Court decisions which held that the State cannot be held liable to any claims for exemplary damages arising out of tortuous actions of its servants, unless those actions were sanctioned, directed or authorized by the State or were done in furtherance of particular policy or policies of the State. The common view held in these cases was that the State cannot be held liable for the deliberate actions of protagonists. The cases further held that it was pointless awarding exemplary damages which could not have any punitive or deterrent effect on the State. His Honour said that such approach is too restrictive and is inconsistent with s. 58 of the Constitution.

59. His Honour at page 540 of the judgment said:

"...The argument advanced in favour of awarding exemplary damages against the State in these cases is that, whilst exemplary damages may be awarded against the individual policeman involved, it cannot be awarded against the State, unless there is evidence produced by the plaintiff to show that the State as an institution, officially sanctioned, directed or approbated these raids or that the raids were conducted in pursuance of a policy of the Department or the State. The argument goes that the State cannot be held responsible for the deliberate actions of protagonists. Further, award for exemplary damage will not have a punitive or deterrent effect on the State.

These arguments are valid as being relative to the exercise of judicial discretion in awarding exemplary damages."

60. Then at page 542 his Honour said:

"With respect, I would differ from the views expressed by Woods, J and Sheehan J. The approach taken in the above cases is too restrictive and not consistent with the Constitution. As in this case, in a case where the plaintiff claims exemplary damages for violation of constitutional rights, the source of primary law is the Constitution, s. 58."

61. His Honour went onto discuss the application of s. 58 of the Constitution, in awarding exemplary damages. At pages 543 to 544 his Honour said:

"....There is no doubt that whilst a punitive award against the State may not have the desired punitive effect, it will certainly, in principle show the Court's disapproval and the public indignation of the oppressive actions of the servants and agents and required the State to take appropriate actions to rectify the situation. It will also adversely affect the reputation of the State".

62. His Honour was considering cases involving police raids into villages, for which plaintiffs claimed exemplary damages.

63. The case of Abel Tomba –v- The State (supra) was about an appeal against part of the judgment of the National Court, which rejected a claim for exemplary damages. The claims were for the destruction of houses and other property in a village belonging to the plaintiff by the police in April, 1990, during a raid. His Honour Amet CJ delivered the dissenting judgment in which he allowed the appeal and awarded a sum of K20,000.00 to the appellant. His Honour at page 7 of the judgement said:

"......The justification that exemplary damages against the State cannot be considered because of lack of evidence as to whether the actions of the police officers was (sic) officially suctioned by State policy or directives and that individual police officers were not named in the Writ for exemplary damages to be awarded against them individually is to import into the consideration of the award of exemplary damages criteria which is not necessary."

64. Then at page 8, his Honour said:

"The award of exemplary damages is therefore not dependant upon whether the action was officially sanctioned by the State policy or directives or whether individual employee officers were named in the writ in order that the award can be made against them personally. Rather, once liability for the breach or the tortuous conduct has been vicariously imputed to the employer, then ordinary and exemplary damages can be awarded against the employer. It is also specifically enabled by the Search Act."

65. Then at page 9, his Honour said:

"In all the circumstances of the nature of the infringement and the loss and damages occasioned to the properties of the plaintiff. I would award exemplary damages in the amount of K20,000.00 to reflect the gravity with which I consider the Courts should view the outrageous and malicious conduct of the officers of the State."

66. The appeal was dismissed by majority decision comprising Los J and Salika J (as he then was). The gist of the majority decision was given by Los J, at page 10 of the judgment, where his Honour said:

"I endorse the rational of the trial judge's decision not to award any exemplary damages. That is the exemplary damages are awarded as punitive measures against wrong doers, the people of PNG constituting the State as an entity should not pay penalty for an excessive action taken by certain police officers that they, the people themselves have not authorized."

67. This utterance was however subsequently qualified when his Honour at page 21 of the judgment said that it is a matter for the Court to decide whether the case warranted awarding of exemplary damages:

"......It is my view therefore that apart from considering whether the circumstances warrant award of exemplary damages and what amount is reasonable, the Court also has a discretion to refuse payment on the grounds that the acts complained of were so excessive and beyond all expectations that required under statutes, rules and standards that the State should not be ordered to pay." (my underlining).

68. Then Salika J. concurring with Los J, at page 25 said:

"....In my view, it is discretionary upon the Court to determine whether or not to award exemplary damages considering all the relevant circumstances and the manner under which the wrong was done." (my underlining)

69. The approach adopted by Amet CJ, is in my respectful view similar to the approach adopted by Injia J, in James Koimo –v- PNG (supra).

70. In this case given its facts and circumstances, I would adopt what I would with respect describe as a more liberal approach adopted by Injia J (as he then was) in James Koimo and Amet CJ in Abel Tomba (supra), in that the State should in such cases be liable for the actions of its servants. This is a very clear case of very serious and blatant breaches of the plaintiff's constitutional rights, which were committed over several months. The State institutions, its servants and agents were involved in the unlawful arrest and detention and false imprisonment of the plaintiff. The State has to be held responsible for the actions of its servants and agents, the State is therefore liable to the plaintiff's claim for exemplary damages. It would be totally unfair to the plaintiff if the State was not held responsible for the actions of its servants and agents. The amount awarded in exemplary damages should reflect the Court's disapproval and condemnation of the total and callous disregard of the plaintiff's rights and dignity by the defendants. This view is in my view consistent with s. 1(1) and (4) of the Wrongs Act, which are in these terms:

"1. General liability of the State in tort

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

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

(4) Where functions are conferred or imposed on an officer or the State as such either by a rate of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government."

71. If a servant or an officer of the State who has committed tortuous actions as in this case is personally ordered to pay exemplary damages, it is more than likely that the plaintiff may never be compensated for injury suffered. This view is based on the fact that most, if not, all those who commit such torts do not have the means to pay damages, a typical example would be a policeman damaging property during a police raid. Thus to order an individual police officer or servant of the State to personally pay exemplary damages would be as good as making no orders at all infavour of the wronged person. In such situations, the person wronged would suffer grave injustice.

72. As to the view that if exemplary damages are awarded against the State it would not have any deterrent effect on the State, I beg to differ. I am of the firm view that, exemplary damages would have a deterrent effect on the servants of the State who commit the wrongs, the State can make them to contribute towards the damages awarded under s. 37 (4) of the Wrongs Act. This section empowers the State to take appropriate measures to control and even stop such unauthorized conduct of its servants by recovering some money from them. This can be done through salary deductions or withdrawing certain portions of their entitlements on retirement and so on.

73. The law relating to exemplary damages must be appropriately applied to the circumstances of Papua New Guinea. Here, the financial considerations, particularly the capacity of the wrongdoer to pay exemplary damages is a very significant factor to be taken into account, as most State servants or officers who commit 'the torts' cannot afford to pay exemplary damages if they are personally ordered to pay such damages. This has been given due recognition by the legislature through the Wrongs Act, where the State is made liable for all tortuous actions of its servants. Thus the law having given exemplary damages as the way to compensate those wronged, the State should pay exemplary damages arising out of the tortuous actions of its servants.

74. In the circumstances, I award K10,000.00 to the plaintiff in exemplary damages.

75. In the end, the total amount awarded to the plaintiff is K35,000.00. I award 4% interest on that amount from the date of the writ which is 4 April, 1996 to the date of the judgment, which is 11 November, 2002. That is a period of 6 years, 8 months and 1 week.

76. Interest:

4% of K35,000.00 Monthly Interest Weekly Interest K1,400.00 x 6 K116.67 x 8 K29.17. x 1 K8,400.00 + K933.36 + K29.17

= K1, 400.00 – pa = K1, 400.00 – 12 = K116.67 = K29.17 = K8,400.00 = K933.36 = K29.17 = K9,362.53

77. The total amount in interest is K9,362.53. Therefore the total amount awarded in damages with interest is K35,000.00 + K9,362.53 = K44,362.53. I therefore award K44,362.53 to the plaintiff in damages and interest.

78. The defendants will pay the plaintiff's costs.
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Paulus Dowa Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the Defendant