Yawi v Nenga [2002] PNGLR 19 (24 April 2002)

[NATIONAL COURT OF JUSTICE]

KAWI YAWI

v

TOREPA NENGA;
ANTON SINAWAI; and
THE STATE

MT. HAGEN: JALINA J

13 March; 24 April 2002

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 and 57.

Facts

The applicant was detained in the police cells at Mt. Hagen from the 12-15 and 18-21 October 1999, a total of 8 days. The applicant was later released from the police cells without being charged. He filed an application pursuant to s 57 of the Constitution seeking to enforce his right under s 42 of the Constitution.

Held

1. The actions of the police in detaining the applicant in the police cells for 8 days without being charged amounted to false imprisonment or unlawful detention and therefore a breach of s 42 of the Constitution.

2. In the absence of a detailed assessment of the damages claimed, the court is required to take into account the declining value of the Kina and the price of goods and services to determine the appropriate amount for damages for false imprisonment.

Papua New Guinea cases cited

Pawa Kombea v Semal Peke [1994] PNGLR 572.

Counsel

K Sino, for the applicant.
B Ovia, for the respondents.

24 April 2002

Jalina J. On 2 December 1999, the applicant filed an application in this Court of his Constitutional rights under s 42 of the Constitution. The acts that constituted the breach are set out briefly in his application:

"The police did wilfully and unlawfully detain one Yawi Kawi at the Mt. Hagen Police Cells against his will for a 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, showing clearly 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 13 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 4 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 and the award in Kombea' case being 8 years ago (in 1994), the K16,000.00 (being K1,000.00 per day) being requested is appropriate in the circumstances.

Mr. Ovia on the other hand has submitted that there is no 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 should not be awarded because 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.