N3787

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. 1107 OF 2005

BETWEEN:

TITUS WAMBUN
Plaintiff

AND:

INSPECTOR D. YASMSOMBI & ORS
First Defendants

AND:

ISSAC MOI
Second Defendant

AND:

AWAN SETE – METROPOLITAN POLICE COMMANDER
Third Defendant

AND:

ALFRED REU – ASSISTANT COMMISSIONER FOR POLICE
Fourth Defendant

AND:

SAM INGUBA – COMMISSIONER FOR POLICE
Fifth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Lae: Manuhu, J.
2009: November 18

PRACTICE AND PROCEDURE – Cause of action – Malicious prosecution – Plaintiff claims malicious prosecution after conviction was quashed by Supreme Court – Elements of malicious prosecution.

PRACTICE AND PROCEDURE – Statement of Agreed and Disputed Facts – Absence of affidavit – Improper for counsel to sign Statement of Agreed and Disputed Facts without reference to any affidavit on the substantive claim. 

Cases cited:

Mahara Ignote v Abraham Hualupmomi and the State [1996] PNGLR 308, Joe Hesingkeoc Nayos v Roy Gawi & Ors (2008) N3484. 

Counsel:

A. Kimbu, for the Plaintiff
G. Odu, for the Defendants

18th November, 2009

1. MANUHU J.: Liability was determined by this Court a year ago in favour of the plaintiff after the defendants defaulted in not filing their defence within the stipulated time. The matter came before me for directions hearing and was fixed for 7th December 2009 for a hearing date on assessment to be allocated. 

2. The matter was, however, recalled for counsel to address the Court on two issues that became obvious soon after I adjourned the matter. I noticed that the Statement of Agreed and Disputed Facts had already been signed by defence counsel, Mr. Odu, on behalf of the Solicitor General, and they take no issue with any pleaded fact. But the Plaintiff had not filed any affidavit in support of the substantive claim. How could counsel honestly and diligently on behalf of his client agree on facts without reference to any affidavit? That would be the first issue.

3. The substantive matter is a claim for malicious prosecution. The plaintiff is claiming K26.4 million in damages. The plaintiff was charged and indicted for willful murder. He was subsequently convicted of manslaughter. The conviction was later quashed by the Supreme Court. The plaintiff names the arresting officer and policemen in Lae, including the Commissioner for Police as defendants. It is not pleaded that the witnesses lied or were influenced to do so by the arresting officer or policemen. How could the plaintiff sue the arresting officer for malicious prosecution when the plaintiff was committed by the Committal Court and convicted by the National Court? That would be the second issue.

4. Counsel appeared before the Court this morning and both issues were explained, one at a time, and they were asked to address the Court on them. In relation to the first issue, they did not give any good reason for endorsing the Statement of Agreed and Disputed Facts. Mr. Odu appeared dumbfounded. Mr. Kimbu emphasized that the only issue is quantum – how much should the State pay to the plaintiff. The Statement of Agreed and Disputed Facts, which had been signed by Mr. Odu, confirms that position. Thus, the Court was told that they were still in the process of negotiation. Even then, how could they meaningfully negotiate without reference to any affidavit supporting the claim? 

5. In relation to cause of action, both counsels did not have any appropriate submission to make even after the Court gave them time to make further submissions after lunch. Mr. Kimbu requested, with Mr. Odu’s consent, that the matter be adjourned to the Registry. But in view of how the proceeding had been managed, the Court refused the request. Secondly, the defect in the pleading was substantial. An adjournment would not cure it.

6. The Court was of the view that it was improper and professionally negligent for Mr. Odu to sign the Statement of Agreed and Disputed facts and in the process failed to dispute any pleaded fact without reference to any affidavit in support of the claim against the State in excess of K26.4 million. Neither did Mr. Odu rely on any affidavit evidence from his own clients. He acted on his own accord and very nearly agreed to a judgment on quantum. 

7. The Court is of the view, secondly, that the plaintiff could not maintain an action against the arresting officer and his colleagues. In the first instance, the arresting officer must have relied on witnesses’ statements to arrest and charge the plaintiff. The plaintiff was brought before the Committal Court which, based on evidence, not on who the arresting officer was, committed the plaintiff to the National Court. The National Court then, based on witnesses’ evidence, not on who the arresting officer was, convicted the plaintiff for manslaughter and imprisoned him. Against this background, the claim for malicious prosecution was inherently flawed.

8. In cases of malicious prosecution, it has to be shown that the defendant instituted a criminal proceeding against the plaintiff. Secondly, such proceeding was dismissed. And, thirdly, the defendant did not have a reasonable or probable cause. See Mahara Ignote v Abraham Hualupmomi and the State [1996] PNGLR 308, and Joe Hesingkeoc Nayos v Roy Gawi & Ors (2008) N3484. 

9. Reasonable or probable cause is nicely explained by John G. Fleming (The Law of Torts, Sixth Ed., The Law Book Company Limited (1983) at p. 582) as follows:

"Reasonable and probable cause has been defined as ‘an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.’"

10. In this case, the reasonableness of the arresting officer’s decision to arrest and charge the plaintiff for willful murder is evident in the decisions of the Committal Court and the National Court. These decisions were based purely on the evidence of witnesses. Given the high standard of proof, it matters not that the Supreme Court quashed the conviction. It is not alleged that the witnesses lied or conspired with the arresting officer to lie. There was, therefore, no linkage between the alleged malicious intent and the decisions of the Committal Court and the National Court. 

11. Citizens of this country have gone through the same criminal process and have had their convictions eventually quashed by the Supreme Court. There is nothing to show that this case is different and special. The plaintiff cannot sue the State for his lawful detention. In the absence of proof to the contrary, public policy considerations forbids an accused from suing the State just because he was acquitted. The arresting officer had reasonable and probable cause to arrest and charge the plaintiff with willful murder.

12. For the foregoing reasons, the proceeding was dismissed with costs.

___________________________

Kimbu & Associates: Lawyer for the Plaintiff
Acting Solicitor General: Lawyer for the Defendants