|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 696 OF 2018
BETWEEN
HAVILA KAVO
Plaintiff
AND
MARK MAIPAKAI - Former Minister for Labour & Industrial Relations & Minister for Internal Security & Member for Kikori
Open Electorate
First Defendant
AND
DETECTIVE FIRST CONSTABLE REX WOSAE
Second Defendant
AND
GARI-BAKI – POLICE COMMISSIONER
Third Defendant
AND
PONDROS KALUWIN
Fourth Defendant
AND
HON. DAVIS STEVEN – Minister for Justice & Attorney-General
Fifth Defendant
AND
MARK ORISURU AVAI – Gulf Provincial Administrator
Sixth Defendant
AND
GULF PROVINCIAL GOVERNMENT
Seventh Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Eighth Defendant
Waigani: Makail, J
2022: 15th March, 14th April & 2023: 13th October
LIABILITY – Tort of unlawful arrest – Tort of false imprisonment – Tort of malicious prosecution – Allegation of misappropriation – Lack of proof – Absence of reasonable belief – Lack of reasonable and probable cause – Lack of malice – Liability not established – Action dismissed
Cases Cited:
Papua New Guinea Cases
McKenzie v. The State (1998) SC596
Topo v. Kaman (2009) N3773
David Kofowei v. Augustine Siviri & Ors [1983] PNGLR 449
Wani v. Provincial Police Commander, Western Highlands Province (2010) N3900
Kipahi v. Numbis (2020) N8437
Kalo v. Akaya (2007) N3213
Pius Nui v. Sergeant Mas Tanda (2004) N2765
Tkatchenko v. National Capital District Commission (2002) N2196 Jubilee Hambru v. Michael Buar (2007) N3197
Ignote v. Hualupmomi and The State [1996] PNGLR 308
Overseas cases
Herninan v. Smith [1938] AC 305
Hicks v. Faulkner (1881) 8 QBD 167
Counsel:
Mr. S. Dadada, for Plaintiff
No appearance, for First to Fifth and Eighth Defendants
Mr. M. Alyata, for Sixth and Seventh Defendants
JUDGMENT
13th October 2023
1. MAKAIL, J: This is an action for unlawful arrest, false imprisonment, and malicious prosecution. The defendants contest liability. They filed a defence and alleged that the arrest, detention, and prosecution of the plaintiff was proper, legal, and justified.
Allegations
2. The plaintiff is the former Governor of Gulf Province. He was first elected to the National Parliament in 2007 and was re-elected in the 2012 National General Elections. The plaintiff alleges that his arrest, detention, and prosecution arose from the following circumstances:
Liability
3. The learned counsel for the plaintiff and for the sixth and seventh defendants filed written submissions to address the issue of liability. The other defendants did not. I have read the submissions and thank counsel for their assistance.
4. Each learned counsel has addressed the relevant principles of law to establish liability in an action for unlawful arrest, false imprisonment, and malicious imprisonment.
Unlawful Arrest
5. In an action for unlawful arrest, it is necessary for establish that the arrest of the plaintiff was in breach of the law, in this case, the Arrest Act. Secondly, the tortfeasor acted without reasonable belief to arrest the plaintiff, or the arrest of the plaintiff was without reasonable belief that he had committed an offence: McKenzie v. The State (1998) SC596 and referred to in Topo v. Kaman (2009) N3773.
6. Proof of the requisite absence of reasonable belief is necessary because by law, members of the police are conferred power of arrest, and the power may be exercised based on available information or even on suspicion. Such exercise of power must not be unnecessarily curtailed by members of the public on unfounded and unsubstantiated allegations of abuse of power by members of the police. In Jubilee Hambru v. Michael Buar (2007) N3197, Gavara-Nanu J made this pertinent point where his Honour said:
“20. It is common knowledge that the police would have arrested the plaintiff following normal police investigations and they
may have relied on evidence or information they obtained from sources other than those stated by the plaintiff in paragraph 10 of
the Statement of Claim. For instance, they may have obtained information from their informers about plaintiff’s involvement
in the robbery or his accomplices may have told the police that he was involved in the robbery. It may well be that his involvement
in the robbery was in ways other than physical involvement such as providing the information required for his accomplices to execute
the robbery; for example, the arrival time of the flight carrying the vanilla beans from Wewak or that he planned the robbery for
others to execute. In such circumstances, he did not have to be physically involved. These are some of the ways the police may have
gathered their information and formed the belief that plaintiff did commit the offence, hence his arrest.”
False Imprisonment
7. An action for false imprisonment ordinarily follows from an action for unlawful arrest and it is established if first, the detention was without lawful justification and secondly, where the person detained is not charged with an offence upon being detained or is prevented from leaving the place he is: David Kofowei v. Augustine Siviri & Ors [1983] PNGLR 449, Wani v. Provincial Police Commander, Western Highlands Province (2010) N3900 and Topo v. Kaman (supra).
Malicious Prosecution
7. An action for malicious prosecution requires much more than a successful prosecution of a person. To succeed, it must be established that:
(a) a criminal proceeding was instituted, adopted, or continued by the defendant(s) against the plaintiff,
(b) the criminal proceeding was terminated in favour of the plaintiff,
(c) absence or lack of reasonable or probable cause in instituting, adopting, or continuing the criminal proceeding against the plaintiff,
(d) presence of actual malice which may comprehend a primary purpose other than that of carrying the law into effect, and.
(e) the plaintiff has suffered damage to his fame, person, and property.
8. Respectfully, these principles are extracted from the cases of Kipahi v. Numbis (2020) N8437, Kalo v. Akaya (2007) N3213, Pius Nui v. Sergeant Mas Tanda (2004) N2765, Tkatchenko v. National Capital District Commission (2002) N2196 and Tole v. Kongi (2019) N7728.
9. In Ignote v. Hualupmomi and The State [1996] PNGLR 308, the Court stated:
“The plaintiff must not only prove malice but also the absence of reasonable and probable cause. Malice is basically where the defendant has a purpose other than bringing an offender to justice.”
10. As to measuring the standard of reasonable and probable cause, the Court in Ignote (supra) referred to the House of Lords decision of Herninan v. Smith [1938] AC 305 which adopted an earlier decision of Hicks v. Faulkner (1881) 8 QBD 167 at 171 by Haukins J which may be summarised as follows:
(a) A person must hold an honest belief in the guilt of the accused.
(b) An honest belief must be based on a full conviction, founded on reasonable grounds, of the existence of a state of circumstances.
(c) It is assumed that the grounds relied upon by the person to form an honest belief are to be true.
(d) As to who that person is, it is an any ordinary prudent cautious man placed in the position of the accuser, may conclude that the person charged was probably guilty of the crime imputed.
11. The House of Lords also held that in order for the plaintiff to succeed, he must prove one of the following:
“1. That the defendant did not believe that the plaintiff was probably guilty of the offence; or
12. In the first instance, it is necessary for the plaintiff to give evidence of fact or facts sufficient to draw an inference that the defendant did not believe in the plaintiff’s guilt.
13. The Court will be guided by these principles to determine whether the plaintiff has established the tort of unlawful arrest, false imprisonment, and malicious prosecution against the defendants.
Plaintiff’s Evidence
14. The plaintiff relied on seven affidavits sworn by him:
(a) Affidavit in support of plaintiff sworn 23rd November 2018 and filed 04th December 2018,
(b) Further affidavit in support of plaintiff sworn and filed 10th December 2018,
(c) Affidavit in support of plaintiff sworn 20th September and filed 25th September 2019,
(d) Affidavit in support of plaintiff sworn 12th November 2019 and filed 15th November 2019,
(e) Affidavit in support of plaintiff sworn 24th January 2020 and filed 28th February 2019,
(f) Affidavit in support of plaintiff sworn 13th March 2020 and filed 16th March 2020, and
(g) Further affidavit of plaintiff sworn 30th March 2022 and filed 11th April 2022.
Defendants’ Evidence
15. The sixth and seventh defendants relied on the following affidavits filed by the second to fifth defendants:
(a) Affidavit of Charity Kuson sworn 19th February 2019 and filed 20th February 2019,
(b) Affidavit of Sergeant David Joel sworn and filed 17th March 2020, and
(c) Affidavit of Camillus Sambua sworn and filed 17th March 2020.
Findings of Facts
16. I have read the affidavits and save for irrelevant assertions, much of the assertions by the plaintiff have not been denied or contradicted by the defendants and likewise, the assertions by the defendants and the Court finds as follows:
Application of the Law
17. Based on the above findings of fact, the Court is satisfied that the plaintiff was arrested on a complaint by the first defendant in relation to allegation of misappropriation of K10 million for Kutubu MOA funds.
18. Secondly, he was detained at Boroko Police Station by the second defendant and questioned in relation a specific allegation of misappropriation of K131,338.00. After he was questioned, he was charged for misappropriation of K131,338.00 the property of the State.
19. Thirdly, criminal proceeding commenced at Waigani District Court and continued against him until it was terminated in his favour when the District Court struck out the charge.
20. Fourthly, the second criminal proceeding was commenced in the National Court by way of an ex officio indictment initiated by the fourth defendant and continued until it was terminated against him. Finally, he appealed to the Supreme Court and the appeal was terminated in his favour. He was discharged from the charge.
21. All in all, the issues are:
(a) in the case of unlawful arrest, whether the first defendant acted without reasonable belief to make a complaint against the plaintiff and whether the second defendant acted without reasonable belief to arrest the plaintiff,
(b) in the case of false imprisonment, whether the second defendant acted without lawful justification to detain the plaintiff,
(c) in the case of malicious prosecution, whether the second and fourth defendants acted without reasonable or probable cause in instituting and continuing the criminal proceeding against the plaintiff, and
(d) whether the second and fourth defendants acted with malice other than that of carrying the law into effect.
(e) If so, whether the second and fourth defendants acted within the scope of their employment and the State should be vicariously liable for their actions.
22. The plaintiff bears the onus of proof and must established that the first defendant acted without reasonable belief to make a complaint against him the second defendant acted without reasonable belief to arrest him. It is abundantly clear that the genesis of the controversy can be traced back to whether the K10 million that was transferred to the Gulf Provincial Government operating account was Kutubu MOA funds or UBSA funds.
23. There is one school of thought that these funds were held in trust for the beneficiaries of the Kutubu MOA and subject to certain conditions. The other is, they are derived from the UBSA funds and formed part of the operational costs of the Gulf Provincial Government and not subject to any conditions.
24. The plaintiff held the latter view and with the approval of the GPEC, K131,338.00 was paid to him to settle outstanding motor vehicle and other allowances. Secondly, despite the advice of the Commissioner of Police for the funds to be audited, the second defendant went ahead, arrested, and detained him over allegations of misappropriation of these funds. Thirdly, his arrest, detention and prosecution were deliberate acts to destroy him and his political career. The first defendant was the instigator, and the second defendant was his accomplice who executed his plan and were successful when he lost the Governor’s seat in the 2017 National General Elections.
25. It is arguable that the points raised by the plaintiff are grounds necessary to establish that the first defendant acted without reasonable belief to make a complaint against the plaintiff and furthermore, the second defendant acted without reasonable belief to arrest him. Secondly, they are grounds necessary to establish that his detention by the second defendant was without lawful justification.
26. On the other hand, the first defendant adopted the first school of thought and made a complaint to the Commissioner of Police. According to his understanding, the funds were derived from the Kutubu MOA and were not for any other purpose than for the Kutubu MOA. This is how his expressed this view to the Commissioner of Police in the second paragraph of his letter dated 10th August 2010:
“The Kutubu MOA funds of K10 million was released to the Gulf Provincial and Local Level Government for specific infrastructure development in Gulf Province. However, Mr Kavo in his capacity as the Governor personally instructed the disbursement of the funds for purposes other than its intended purpose.”
27. The first defendant went on to state in the third paragraph of same letter that:
“I have on record the disbursement details which constitute evidence of conflict of interest and personal benefit.”
28. In the third paragraph of his follow-up letter to the Commissioner of Police dated 12th January 2011, the first defendant repeated his call for an investigation:
“The K10.0 million Kutubu MOA funds was released to the Gulf Provincial and Local Level Government for specific infrastructure development within the pipeline corridors in Kikori, Gulf Province. However, Hon. Kavo in his capacity as the Governor personally instructed the disbursement of the funds for purposes other than its intended purpose and outside of the designated area as specified in the EIC guidelines on the expenditure of MOA funds.”
29. It is abundantly clear that the first defendant held a strong view that the K10 million were Kutubu MOA funds and were subject to conditions, these being for infrastructure development projects in the pipeline corridors in Kikori area.
30. The second defendant held the same view as the first defendant and it was on this basis that he arrested, detained, and charged the plaintiff for misappropriation of K131,338.00. According to the purpose of payment of K131,338.00, outstanding motor vehicle and other allowances did not fall within the infrastructure development projects guidelines.
31. The sixth and seventh defendants played a lesser role in the arrest, detention, and prosecution of the plaintiff. The sum of K10 million was transferred from the Department of Finance to the Gulf Provincial Government operating account and they were requested to verify the transfer of the funds during investigations.
32. Secondly, two of their officers gave evidence at the trial in the National Court. Simon Uriye who was acting Provincial Administrator gave evidence that he was involved in the processing of the plaintiff’s claim for outstanding motor vehicle and other allowances and the Provincial Administrator informed him that the source of the funds to pay the plaintiff was UBSA funds, not the Kutubu MOA funds.
33. Kidi Kavoi was the paying officer in the Finance and Treasury section of the Gulf Provincial Government. He was one of the officers who processed the plaintiff’s claim for payment of outstanding allowances and drew a cheque for the plaintiff for the sum of K131,338.00.
34. The plaintiff does not contest the position taken by the sixth and seventh defendants and it reinforces the sixth and seventh defendants’ submissions that there is no reasonable cause of action against them. For these reasons, this Court is not satisfied that the plaintiff has established that the sixth and seventh defendants committed the tort of unlawful arrest, false imprisonment, and malicious prosecution of the plaintiff.
35. The main players were the first defendant as the complainant and the second defendant as the member of the police who arrested, detained, and charged the plaintiff for misappropriation. The fourth defendant came into the scene after the charge was struck out by the District Court and initiated the ex officio indictment against the plaintiff.
36. Mr Sambua who was the Deputy Public Prosecutor (Courts) formed the same view as the first and second defendants and concluded
that “there was a prima facie case with reasonable prospects of success of conviction arising on the material provided.” and made it quite clear that “....[He] conducted [his] duties to the best of [his] ability in ensuring the plaintiff was not denied his rights and the conducting
of the proceedings were transparent with no ill motive or malice”.
37. He made it clear that “[He] acted with a clear conscious and prosecuted the criminal matters with the professional opinion that there was sufficient
evidence to maintain the charge against the Plaintiff.”
38. It is arguable that what Mr Sambua has deposed in his affidavit is subjective and his opinion is irrelevant but when it is weighed up against the totality of the evidence, it reinforces the view that K10 million were funds for the Kutubu MOA infrastructure development projects and were not to settle the plaintiff’s outstanding motor vehicle and other allowances.
39. In its judgment the National Court identified the conflicting views as one of the issues for trial in this way:
“(a) Whether the K10 million deposited into the Gulf Provincial Government Operating Account were trust funds.
(b) Whether the K131,338.00 was from the MOA Trust funds or UBSA Funds.
(c) ..........
(d) ..........”
40. The National Court accepted the evidence of the State and held that regardless of whether the K10 million was Kutubu MOA funds or UBSA funds, they were trust funds and subject to conditions and K131,338.00 was paid in breach of the trust conditions because it was not for the purpose of funding special projects. The National Court stated at [23] of the judgment:
“In other words whether the funding was from the MOA or UBSA funds, the funds were to fund special projects.”
41. It is significant to mention that in addition to witnesses’ evidence, the National Court relied on Exhibit R which was the Gulf Provincial Government Expenditure Plan where it recorded as “K10 million UBSA SPECIAL PROJECT FUNDING”. On the other hand, it rejected Mr Yer’s evidence that UBSA funds were unconditional, and not tied to any particular project and it was left to the discretion of the Gulf Provincial Government to decide how the funds were to be used. The National Court rejected Mr Yer’s evidence because it lacked credibility.
42. The National Court further held that based on the ordinary standards of reasonable and honest people of Papua New Guinea, the conduct of the plaintiff in allowing and accepting the payment of K131,338.00 out of the MOA or UBSA funds amounted to dishonesty.
43. The Supreme Court held a contrary view and in its judgment, it preferred Mr Yer’s evidence over Mrs Ali because while she “was a senior officer of the Department of Finance, directly responsible for the administration of the Petroleum Outstanding MOA Commitment Trust Account......she was not in a position to authoritatively say that the sum of K10 million was allocation of MOA funding” and there was no evidence which effectively contradicted Mr Yer’s evidence.
44. In the result, it came down to which evidence the Court preferred. The National Court preferred the defence evidence. In the Supreme Court, it preferred the evidence of the plaintiff. In my view, the issue of the purpose of the K10 million out of which K131,338.00 was paid to the plaintiff was a major contentious issue. It was one of mixed fact and law and the appropriate avenue to ventilate the issue was the Court.
45. Based on this, the Court is satisfied that any ordinary prudent cautious man placed in the position of the first, second and fourth defendants will hold an honest belief in the guilt of the plaintiff and was entitled to assume that based on the available evidence will form an honest belief that they were true and conclude that the plaintiff was probably guilty of the offence of misappropriation.
46. As noted earlier, this is all the defence is required to present in rebuttal and has done that. For these reasons, the Court is not satisfied that there was lack of or no reasonable and probable cause in the first, second and fourth defendants in instituting and continuing the criminal proceeding in the District Court and subsequently, in the National Court against the plaintiff.
47. Finally, given the major contentious issue between the parties, it was appropriate that it be resolved by judicial intervention. First, it was resolved in favour of the defendants by the National Court and later, in favour of the plaintiff by the Supreme Court. By all counts, the inference that the arrest, laying of the charge and prosecution of the plaintiff was malicious because it done purposely to destroy him, and his political career is not strong enough to dispel the defence that the primary purpose of bringing the contentious issue to the Court was to carry the law into effect, that is, to hold the plaintiff accountable for his deed.
48. For the foregoing reasons, the Court is not satisfied that the plaintiff has proven that the actions of the first, second and fourth defendants were unlawful and malicious, and liability has not been proven against each and all the defendants.
Conclusion
49. It follows the action for unlawful arrest, false imprisonment and malicious prosecution is dismissed in its entirety with costs to the defendants, to be taxed, if not agreed.
Order
50. The final terms of the order of the Court are:
4. Time shall be abridged.
________________________________________________________________
Kumbari & Associates Lawyers: Lawyers for Plaintiff
Solicitor General: Lawyers for First to Fifth & Eighth Defendants
Greg Manda Lawyers: Lawyers for Sixth & Seventh Defendants
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2023/344.html