Basse v Yalamu [2021] PGNC 17; N8707 (20 January 2021)

N8707

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1062 OF 2017

BETWEEN:
AMBROSE BASSE
Plaintiff

AND:
STEPHEN YALAMU
First Defendant

AND:
SYLVESTER KALAUT as PROVINCIAL POLICE COMMANDER, MADANG PROVINCE
Second Defendant

AND:
GARY BAKI POLICE COMMISSIONER OF PAPUA NEW GUINEA
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Madang: Narokobi J
2020: 4^th November
2021: 20^th January

DAMAGES – unlawful actions of police - assessment of damages – general damages – breach of human rights - special damages – exemplary damages

The plaintiff was at the time of the incident a Ward Councilor. Due to concerns about homebrew in his area of responsibility, the police in large numbers entered their community at Wagol, ward 5, Madang Urban Local Level Government unannounced. His house was searched by the police without a warrant, and then he was assaulted badly in front of his family and the community. He was told to march with other young men from the community to Jomba Police station in full view of the public. He was detained for 10 hours before he was released. Though not permeant, the injuries he suffered from the assault include a broken nose and loose tooth. Liability was determined by default and the matter is now before the court for assessment of damages.

Held:

(1) This was a case where compensation for breaches of human rights should be assessed separately from general damages (Kolokol v Amburuapi (2009) N3571 followed)

• (2) The Kolokol approach is not universal and relevant considerations include the fundamental importance of human rights and freedom which have constitutional guarantee in Papua New Guinea, and in this particular case, the Kolokol approach will enhance the enforcement, protection and promotion of human rights and freedoms. But again, each case should be dealt with on its own merits.
  
• (3) General damages for assault was assessed at K10, 000.00.
  
• (4) General damages for embarrassment and humiliation was assessed at K10,000
  
• (5) The plaintiff’s human rights and freedoms were breached on five (5) distinct occasions:
  
  • When his house was searched without a warrant;
  • When he was assaulted;
  • Paraded in public by the police;
  • When he was detained without being charged for any criminal offence;
  • When he was unlawfully detained for 10 hours.
    
• (6) On each of those occasions, six (6) of his human rights were breached:
  
  • Right to freedom (Constitution, s32(2);
  • Freedom from inhuman treatment (Constitution, s 36);
  • Right to the full protection of the law (Constitution, s 37(1));
  • Right to be treated with humanity and with respect for the inherent dignity of the human person (Constitution, Section 37(17);
  • Proscribed acts (Constitution, Section 41);
  • Liberty of the person (Constitution, Section 42);
  • Freedom from arbitrary search and entry (Constitution, s 44)
    
• (7) He was awarded K10, 000.00 each for the first three occasions his rights were breached. For the next two occasions, K1,000 each is awarded. Therefore, a total of K32,000 is awarded for breach of constitutional rights pursuant to sections 57 and 58 of the Constitution.

(8) The breach of constitutional rights showed a wanton disregard of constitutional rights and warrants an award of exemplary damages of K10, 000.00.

(9) The total amount of damages payable was K66,030, inclusive of interest of K4,030.

Cases Cited:

Alfred v Kapi (2020) N8467
Chapok v Yali (2008) N3474.
Coecon Ltd (Receiver-Manager Appointed) v National Fisheries Authority of Papua New Guinea (2002) N2182
David Kofowei v Augustine Siviri and Others [1983] PNGLR 449
Dope v Malai (2012) N4574
Felix Kua v. Clement Patiken (2010) N4103
Kolokol v Amburuapi (2009) N3571
Latham v Peni [1995] PNGLR 435
Namuesh v Ofoi, Avali, The Police Commissioner and The State [1996] PNGLR 211
Patai v Niugini Lumber Merchants Pty Ltd (1997) N1602
Pawa Kombea v Semal Peke [1994] PNGLR 572
Teine Molomb v The State (2005) N2861
Wakalu v Police (2017) N6600

TRIAL

This is a trial on assessment of damages.

Counsel

Mr W Akuani, for the plaintiff
No appearance for the Defendants

JUDGEMENT

20 January 2021

1. NAROKOBI J: On 11 May 2019, default judgement on liability was entered against the fourth defendant, with damages to be assessed. The trial on assessment of damages was conducted on 4 November 2020. This is the court’s decision after the trial on assessment of damages.
   

A BACKGROUND

2. The plaintiff claims damages for physical assault and breaches of his human rights and freedoms by the police.
   
3. At the time of the incident the plaintiff was the Ward Councilor of Ward 5, Madang Urban Local Level Government (MULLG). He resides in Wagol in the MULLG area.
   
4. On 26 October 2014, between 6.30am and 7.00am, the police in large numbers entered the community at Wagol, Ward 5, MULLG unannounced. The plaintiff’s house was searched by the police without a warrant, and then he was assaulted badly in front of his family and the community. He was told to march with other young men from the community to Jomba Police station in full view of the public. He was detained for 10 hours before he was released. He was released without any charges laid on him.
   
4. The plaintiff obtained default judgement and is now before this court seeking default judgement. He relies on his own affidavit filed on 15 November 2018 and two other deponents. The defendants have not filed any affidavits in response.
   
5. In summary the plaintiff claims the following:
   

Type of damages claimed	Amount
Constitutional rights breached @ K10,000 for each of the occasion	K30,000.00
General damages for embarrassment and humiliation	K5,000.00
General damages for pain and suffering	K10,000
Exemplary damages	K10,000.00
Total claimed	K55,000.00

6. The pertinent facts substantiating each claim will be discussed under each head of damage claimed.
   

B ISSUES

7. I consider the issues to be whether the plaintiff is entitled to damages, and if so, what are the categories of damages and how much? Depending on how the issue is resolved whether interest should be awarded and at what rate and who should be liable for the judgement sum, if any?
   

C. FACTS

8. The plaintiff’s statement of claim pleads breach of constitutional rights. For breach of constitutional rights, he says his right to freedom under s 32(2), his right to freedom from inhuman treatment under s 36, his right to protection under law s 37(1), proscribed acts under s 41(1(a)(b)(c), liberty of the person under s 42(1), freedom from arbitrary search and entry under s 44, right to privacy under s 49 and right to freedom of movement under s 52.
   
9. The uncontested evidence of the plaintiff is from his own affidavit filed on 9 August 2019 and the affidavit of John Romanus, filed on 9 August 2019. He deposes to the following.
   
10. The plaintiff was at the time of the incident a Ward Councilor. Due to concerns with homebrew in his area of responsibility, the police in large numbers entered their community unannounced on 26 October 2014 between 6.30am and 7am. His house was searched by the police without a warrant, and then he was badly assaulted in front of his family and the community. He was told to march with other young men from the community at Wagol to Jomba Police station, a distance of roughly two (2) kilometer in full view of the public. He was detained for 10 hours before he was released. Though not permeant, the injuries he suffered from the assault include a broken nose and loose tooth.
    
11. The extent of his injuries from the medical report are as follows:
    
    • Fractional nasal bone;
    • Swollen, tender and bruised right leg calf muscle;
    • Bruised back area with bleeding;
    • Tender with no obvious swelling on posterior neck;
    • Mobile teeth of lower jaw (ie loose tooth)
      
12. The plaintiff was never charged for any criminal offences and released 10 hours later.
    
13. His assault and apprehension by the police is corroborated by the affidavit of John Romanus filed on 9 August 2019.
    

D ADDRESSING THE ISSUES

Damages

14. In assessing damages, I have reviewed a number of cases and I settle with the approach of Cannings J in Kolokol v Amburuapi (2009) N3571. His Honour took the same course the court took in David Kofowei v Augustine Siviri and Others [1983] PNGLR 449 and Pawa Kombea v Semal Peke [1994] PNGLR 572.
    
15. In Kolokol His Honour awarded damages for each separate cause of action pleaded, that is general damages, for each occasion the plaintiff’s rights were breached, special damages, exemplary damages and interests.
    
16. The alternative approach is to award a global sum for all damages suffered as was what the court did in Teine Molomb v The State (2005) N2861. The plaintiff has urged the court to adopt the approach in Kolokol.
    
17. I take the approach in Kolokol. I do so bearing in mind that it is not a universal approach and each case ought to be considered on its own merits. I take the Kolokol approach as I consider the cause of action has been sufficiently pleaded, there is good evidence of the claim although that evidence is not corroborated. All in all, considering the fundamental importance of human rights and freedom which have constitutional guarantee in Papua New Guinea, the Kolokol approach will enhance the enforcement, protection and promotion of human rights and freedoms, at least in so far as this case is concerned. But again, each case should be dealt with on its own merits.
    
18. The following are therefore the heads of damages I will consider as submitted by the plaintiff:
    
    • General damages for assault pain and suffering;
    • General damages for embarrassment and humiliation;
    • Damages for breach of constitutional rights; and
    • Exemplary damages and if so, for how much.
      
12. The plaintiff does not claim special damages, so I do not consider this item for an award.
    
13. I also determine whether the plaintiff should be awarded interest on any damages assessed and if so, at what rate and for what period?
    

E DAMAGES AND COMPENSATION

First Category of Damages - General Damages for Assault, Pain and Suffering

14. The plaintiff claims general damages for being assaulted by the police and has produced medical report to substantiate it.
    
15. For general damages for the nature of injuries the plaintiff sustained, in that it did not require hospitalisation, I take as the starting point the case of Chapok v Yali (2008) N3474. There, the National Court awarded K5,000 for the following incident:
    

“3. He was getting ready to tell them that the vote of no-confidence had been postponed. But before he started, Mr Yali verbally abused him. He called him a "bastard" and an "arsehole". He accused him of associating with the Ambenob LLG president the previous night. In response to the unfriendly atmosphere Mr Chapok got up to leave. Mr Yali stopped him. He punched him several times in the face, drawing blood and causing him to fall to the floor. Another member of the group, Fred Maliupa, the Usino LLG president, also punched Mr Chapok.”

16. I take the present facts of the case, as a little more serious than the one in Chapok as there is evidence provided on the nature and extent of the injuries. Dope v Malai (2012) 4574 was a little more serious than the present case where the plaintiff suffered permanent damage to the head, mandible, teeth, thighs and knees and post-traumatic stress syndrome from the assault and was awarded K20,000 in general damages. I will therefore award K10,000 in general damages in this case.
    

Second Category of Damages - General Damages for Loss of Embarrassment and Humiliation

17. The plaintiff claims damages for embarrassment and humiliation on the basis that the police purposely singled him out as the Ward Councilor and proceed to treat him in a manner that would embarrass him. I gather that this was because the police felt that as a community leader, he did not do much to stop the problem of homebrew.
    
18. I am sure there are better and more humane ways the police should have reached out to him, than in the manner they did. From the evidence, this is what was done to him in public:
    
    • The police asked him if he was the Councillor and after he confirmed, they said, that a person like him was not fit to be the Councillor;
    • Struck with a stick on his back and legs;
    • Punched on the face causing bleeding to the nose;
    • Punched, slapped and whipped with rubber hoses;
    • Forced to carry empty gas cylinder used for making homebrew;
    • Ordered to walk in a straight line with 15 other boys some 2km alongside the main North Coast of road of Madang
      
19. In the case of Latham v Peni [1995] PNGLR 435 her Honour Doherty J made the following observation before awarding K9,000 for aggravated damages:
    

“I do however agree and hold that aggravated damages may be awarded and that damages for indignity, fear, humiliation and public disgrace should be properly and appropriately considered.”

20. The facts of the case from the headnote were as follows:
    

“The plaintiffs were assaulted by the defendant whilst travelling from Singapore to Port Moresby on an Air Niugini scheduled flight for no apparent reason at all. The plaintiffs did not know the defendant at all. The plaintiffs suffered bodily injuries requiring medical attention.”

21. I uphold the plaintiff’s submissions and award K10,000 for the embarrassment and humiliation caused to him.
    

Third Category of Damages – Compensation for Breach of Constitutional Rights

22. The evidence led at trial (by affidavit) showed that the plaintiff house was searched without a warrant, he was badly assaulted by being kicked and punched, he was paraded in public and he was locked up without being charged for 10 hours. Since liability has been established that there were breaches of his rights and freedoms, I look at the evidence for purposes of determining compensation under sections 57 and 58 of the Constitution.
    
23. I uphold the plaintiff’s contention on all the breaches he claims.
    

Constitutional Rights and Freedoms Breached	Facts Showing Breaches	Evidentiary Basis
1.Section 32(2) Right to Freedom	Detained without being charged for any criminal offences, and for being unlawfully detained.	Affidavit of the plaintiff and corroborated by the affidavit of John Romanus.
2.Section 36, Freedom from Inhuman Treatment.	Badly assaulted and paraded in public.	Affidavit of the plaintiff and corroborated by the affidavit of John Romanus.
3. Section 37(1), Full protection of the law.	Assaulted, property searched without a warrant and detained without being charged for any criminal offences, and for being unlawfully detained.	Affidavit of the plaintiff and corroborated by the affidavit of John Romanus.
4. Section 37(17), Right to be treated with humanity and with respect for the inherent dignity of the human person.	Badly assaulted and paraded in public.	Affidavit of the plaintiff and corroborated by the affidavit of John Romanus.
5.Section 41, Proscribed acts	Assaulted, property searched without a warrant, paraded publicly and detained without being charged for any criminal offences, and for being unlawfully detained.	Affidavit of the plaintiff and corroborated by the affidavit of John Romanus.
6. Section 42 – Liberty of the person.	Detained without being charged for any criminal offences, and for being unlawfully detained.	Affidavit of the plaintiff and corroborated by the affidavit of John Romanus.
7.Section 44, Freedom from Arbitrary search and Entry	Property searched without a search warrant	Affidavit of the plaintiff.

24. I accept the plaintiff’s submission based on the evidence before the court, that these rights were breached on five (5) occasions:
    
    • When he had his house searched without a search warrant;
    • When he was badly assaulted;
    • When he was paraded in public;
    • When he was unlawfully detained for 10 hours; and
    • When he was detained without being charged for any criminal offence.
      
25. For the searching of his property without a search warrant, I take as a starting point the case of Namuesh v Ofoi, Avali, The Police Commissioner and The State [1996] PNGLR 211where the court awarded K1,000 for breach of s 44 of the Constitution. That case was decided more than 20 years ago, so I would be inclined to increase the amount to K10,000, as it has implications also on the plaintiff’s right to privacy.
    
26. For the assault, I award the same amount I awarded for general damages relying on the same authorities, and so I award K10,000.
    
27. For being paraded in public by the police, in the case of Wakalu v Police (2017) N6600, the court awarded K3,000. I am inclined to increase this amount, as it is a serious breach of human rights considering that it amounts to extra judicial punishment, a form of punishment that is not recognized by the law, so I award K10,000.
    
28. For being detained without being charged, although it is a serious breach of the plaintiff’s rights, I take as a starting point the court’s decision in Dope v Malai (2012) N4574. In that case, K3,000 was awarded, for a period of six (6) days of detention without being charged. In this case the plaintiff was detained for 10 hours, so I award K1,000.
    
29. For unlawful detention, I also find that to be a serious breach of the plaintiff’s constitutional rights. I rely on the case of Dope v Malai as a starting point where the plaintiff was detained unlawfully for six (6) days and awarded K3,000. In this case the plaintiff was detained for 10 hours, so I award K1.000.
    
30. The total damages I award for breach of the plaintiff’s constitutional rights is therefore K32,000.
    

Fourth Category of Damages – Special Damages

31. The plaintiff did not make a claim for special damages and there was no evidence led on this aspect, so I do not award any sum for this category of damages.
    

Fifth Category of Damages – Exemplary Damages

32. For exemplary damages, I consider Section 12 of the Claims By and Against the State Act 1996.
    

“12. Judgements Against the State.

(1) No exemplary damages may be awarded against the State unless it appears to the court that, regardless of the nature of the claim, there has been a breach of Constitutional rights so severe or continuous as to warrant an award of exemplary damages.”

33. I also take into account the court’s ruling in Kolokol and consider the following circumstances as warranting an award of exemplary damages:
    
    • The police were performing normal duties; and
    • There were breaches of the plaintiff’s constitutional rights on at least five (5) occasions (referred to above); and
    • Level of public humiliation for an extended period.
      
34. In light of these considerations, I award exemplary damages to be paid by the State. The plaintiff submits that he should be entitled to K10,000. The breaches of the plaintiff’s rights were serious, he provided evidence to demonstrate the egregious conduct of the defendants. Of particular concern is the public humiliation and sever assaults inflicted on the plaintiff. I award K10,000 for exemplary damages.
    
35. The total damages I award are therefore as follows:
    

Damages Claimed	Amount Awarded
General damages for assault.	K10,000.
General damages for embarrassment.	K10,000.
Constitutional breaches	K32,000.
Special damages	Nil
Exemplary damages	K10,000
Total awarded	K62,000

36. I proceed now to calculate interests on the total damages awarded at K62,000.
    

F INTEREST

37. For interest, I note that it is a discretionary matter for me to consider. I do not see anything speaking against the awarding of interest. But I note that I am confined to a 2% maximum interest rate pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015 for claims against the state.
    
38. I will award interest on the total sum of damages awarded commencing from the date when the proceedings were filed on 16 October 2017 to the date of judgment, that is from 16 October 2017 to 20 January 2021, and calculate it as follows:
    
    • Yearly interest on K62,000 in damages (general damages, damages for breach of constitutional rights and exemplary damages) = K3,720 (K62,000x 0.02x3);
    • Monthly interest = K310. (K1,240/12 x 3);
    • Weekly interest = nil (rounded off to the nearest month, ie 20 January 2021);
    • Total interest is K4,030. (made up of: K3,270 (16 October 2017 – 16 October 2020 – 3 years) + K310 (3 months, 16 October 2017 to 20 January 2021).
      
39. The total interest I award at 2% from the date of filing of the proceedings to the date of judgement is K4,030.
    
40. I therefore award a total judgement sum of K66,030.
    

G LIABILITY AND COSTS

41. Since the court has entered liability against the fourth defendant ie the State, I hold the State responsible for the damages and compensation awarded.
    
42. I award costs in favour of the plaintiff to be taxed if not agreed.
    

H ORDERS

43. In consideration of the facts, the issues and the law, I make the following orders in relation to this matter:
    
    1. Fourth Defendant (the State) pay the plaintiff a total judgment sum of K66,030, being for general damages, compensation for breach of constitutional rights under sections 57 and 58 of the Constitution, exemplary damages and interest.
    2. Interest is to accrue at the rate of 2% per annum for any amount not paid to the plaintiff within 30 days from this order.
    3. Fourth Defendant (the State) pay the plaintiff’s costs of the proceedings, to be taxed if not agreed.
    4. File is closed.
    5. Time is abridged.
       

Judgment and Orders accordingly
Akuanai Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the State