Nayos v Gawi [2014] PGNC 244; N5667 (22 April 2014)

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DAMAGES – Malicious prosecution – Breach of Constitutional Rights – Special Damages – Loss of Earnings – Exemplarily Damages – Assessment of Damages – Following Entry of Default Judgment – Award for general damages – Special Damages of – Exemplary Damages

The police arrested, detained and charged the plaintiff a well known local business man in the Bumayong area of Lae City, with murder. The plaintiff was committed to stand trial in the National Court. He was required to attend court on several occasions both in the District Court and eventually in the National Court. He was running a chicken business and had a contract with New Guinea Table Birds to supply chickens. He also had or was operating a trade store, a liquor outlet and a food bar. All of this were either shut down or closed when he was arrested and detained at the Buimo Correctional Services. He was subsequently released on bail but his trial in the National Court did not take place until a year later. After the prosecution case he was acquitted and discharged after a successful no case to answer submission. He commenced proceedings against the defendants and the State relying on malicious prosecution, negligence, breach of Constitutional Rights as Causes of Action. He claimed general damages for been locked up, mental distress and anxiety, inconvenience damages to reputation plus special damages. Liabilities have been established by entry of default judgment and a trial was held on assessment of damages.

Aina Mond v Chief Inspector Robert Kakesim & the State (2004) N2638
Albert Baine v The State [1995] N1335
David Hauya v The State (2001) N2109
David Kofowei v Augustine Siviri & Ors [1983] PNGLR 449
Jonathan Mangope Paraia v The State (1995) N1343
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Lamon v Senior Constable Baumai (2010) N3920
Lucas Roika v Peter Wama & Ors [1995] N 1373
Michael Buna v The Independent State of Papua New Guinea (2004) N2696
Motor Vehicle Insurance Trust v Tabanto [1995] PNGLR 214
Pawa Kambea v Semal Peke [1994] PNGLR 572
Teine Molomb v The Independent State of Papua New Guinea (2005) N2861
William Mel v Coleman Pakalia & Ors (2005) SC 790

1. SAWONG, J.: Introduction: The plaintiff's claim is for general damages, special damages and punitive damages against the first, second and third defendants and damages for breaches of his Constitutional Rights. The plaintiff has already obtained default judgment, with damages to be assessed. He claims that he suffered damages as a result of malicious prosecution brought against him by policemen of the police force.

2. After the trial was conducted the Court directed the parties to file written submissions by 26th July 2013. On 25th July 2013 counsel for plaintiff filed his submissions. Counsel for the defendant has not filed any submissions. I have decided, after a long wait, to proceed and deliver my decision without the benefit of any submissions from the defendants.

3. The plaintiff is a well known small businessman who lives in the Bumayong settlement area, Lae City in the Morobe Province. He says he is a poultry farmer and store keeper. He claims damages arising from his detention and prosecution by the defendants for murder. On 8th May 2003, the plaintiff was arrested, charged and thereafter remanded at the Buimo Corrective Institution for a period of ninety two weeks. On the 1st of August 2003 he was committed by the Committal Court to stand trial in the National Court. On 8th of July 2004 he was granted bail by the National Court. On 13th April 2005, his National Court trial commenced. On the 26th of April 2005 the plaintiff was acquitted of the charge of murder after a successful "no case" to answer submission. The arresting officer was Senior Sergeant Roy Gawi and the investigating Officer was Detective First Constable Mana Hewa.

4. On 7th June 2005 the plaintiff through its' lawyers served a notice of intention to make a claim against the defendants for malicious prosecution pursuant to Section 5 of the Claims by and Against the State Act. On or about 1st of September 2005 the plaintiff filed a Writ of Summons endorsing his Statement of Claim.

5. On or about 31st of April 2006 the Plaintiff served the Writ of Summons on the defendants. He spent a total of ninety two weeks in custody before he was released on bail.

6. The plaintiff claimed that the conduct of the police caused him mental distress, trouble, inconvenience and anxiety. His reputation as a law abiding citizen and a good member of his community was injured.

7. There are five defendants. The first defendant Roy Gawi who is a Senior Sergeant was the arresting officer. The second defendant Mana Hewa is the investigating officer. Mr. Peter Nessat was the Provincial Police Commander at the time when this matter arose. Mr. Sam Inguba was the Police Commissioner at that time. The State is the employer of all the above defendants.

8. The defendants did not file their defences. The plaintiff then applied for default judgment. He was successful. On 6th of September 2006 default judgment was entered for the plaintiff and the proceeding was then set down for trial for assessment of damages.

9. The plaintiff's evidence consisted of both oral and affidavit evidence. He relies on the following affidavit evidence:

11. The nature of the Plaintiff's evidence is as follows. He states in his evidence that he resides at Bumayong and has been carrying on several business activities. He said that he owned and operated a trade store, a large poultry business in association with Niugini Table Birds where he grew the chicken and sold it back to Niugini Table Birds. He has operated these businesses for well over fifteen years.

12. On or about 8th of May 2003 the first and second defendants arrested him and charged him with the murder of one Moses Empui. At the time of his arrest the second defendant was his neighbor and resided on the next block to him. He says that the second defendant has had a grudge against him since 1992 and this all started when the plaintiff wanted to purchase the block adjacent to the second defendant's from a previous tenant. He says that the second defendant told the previous tenant not to sell the block to the plaintiff. However he said the block was sold to him and he erected his store on the block. He states that on several occasions the second defendant had tried using his position as a policeman and harassed him unduly to get him in trouble with the law. He says that on 8th May 2003, he was arrested and charged and brought before the Committal Court sitting in Lae. He recalled appearing before the Committal Court on several occasions in June, July and finally on 1st August 2003 he was committed to stand trial in the National Court. He says that from the date he was arrested he was detained at the Lae Central Police Station lockup and later taken to Buimo Correctional Services awaiting his committal hearings. He was held in custody at the Buimo Correctional Services since his arrest and detention up until 8th July 2004 when he was granted bail. He says that following his committal he appeared before the National Court starting September 2003 for the monthly call-over each month. So from that time to April 2004 he says he appeared before various National Court Judges over fourteen times.

13. He says that he suffered considerable trouble, inconvenience, anxiety and expenses having to appear before the Lae Committal Court. He says that he felt humiliated when he appeared before the Committal Court and the National Court. He felt stripped off his dignity and on the occasions when he appeared before the Courts he says he could see people who he knew looking at him in a different light. He could see in their eyes and of those in Court that they were questioning his character and integrity. He says that he felt his reputation ebbing away slowly and felt the moral stigma on occasions when he appeared publicly before the Courts in company of known criminals. He says that even up to the day of his trial and before me he was unjustly and wrongfully arrested and charged for the murder of someone that he had nothing to do with it. He says that he is a well respected businessman in Lae and he believes that he had built a reputation as a well respected businessman and leader in his community, back in his home village of Finschhafen and Morobe Province. He says that as a direct result of his arrest, charge and detention he was kept in remand for a total of ninety two weeks awaiting the trial for the charges made against him.

14. He says that he was involved in several business and economic activities before his arrest and detention. This included:

15. He says that he had investment in Interest Bearing Deposits with ANZ bank of K176,693.23. He says that he had to close his Interest Bearing Deposit as a direct consequence of his incarceration.

16. He says that his chicken business was hardest hit as it ceased to operate when he was remanded in custody. He says that he had a turnover of between 20,000 – 30,000 chickens prior to his detention. When he was in custody and was awaiting trial his business stopped. Because of his detention and charges he says that New Guinea Table Birds were not willing to engage him after his trial at the National Court and only felt confident in giving him chickens to look after in the beginning of 2006. He says the he has been looking after the chickens since beginning of 2006. He says that from the 8th of May 2003 – January 2006 there would have been one hundred twenty four weeks during which he did not sell any chickens to New Guinea Table Birds. He says that he lost about K300,000.00 during the period when he was incarcerated.

17. He says that he provided the necessary information to his Accountants, Ravu & Associates who calculated his losses for the shop at K55, 639.00. I will say, a little bit more on this aspect of the claim later on in the judgment.

18. Further he says that he was earning about K700.00 per fortnight prior to his detention. He says that he lost his income whilst he was in prison. He also gave evidence of paying for cost to his lawyer and other relatives to go to Mt Hagen to make bail applications amounting to K 3,400.00. He also said that he incurred medical cost of K 6,500 for medical fees.

19. In cross-examination the plaintiff did not deviate from the essence of his evidence that I have summarized. In my view the cross-examination did not discredit or do any damage to the creditability and evidence of the plaintiff.

20. The plaintiff in his oral evidence stated that during the thirteen month period he was held in custody he lost all his tooth. He did not see his children grow up and his children left school as he could not support them. His Store broke down and his chicken farm closed down altogether. He stated that after he was released from bail he tried to resume his business but found it difficult. Consequently, he used his IBD's to try and help rejuvenate his business. He also gave evidence that because of the charges his reputation was ruined and his good friends left him. In cross-examination he confirmed that he had a company Nayos Enterprise Limited which was registered. He gave evidence that the poultry business was owned and operated by him. He confirmed that he felt humiliated and stripped of his dignity.

21. The next piece of evidence came from Kara Joe Domanai. He is an Extension Officer with Niugini Table Birds. His responsibilities included overseeing the small growers who grew chicken at Sipaia, West Taraka, Igam and Gobari. He says that he has dealt with the plaintiff since he started raising chickens and selling back the chickens to Niugini Table Birds. He says that of the growers he was responsible for, the plaintiff had consistently raised number of chickens up to thirty thousand (30,000). He confirms that the plaintiff had been operating the chicken business for over ten years. He deposes that Niugini Table Birds provides almost everything that is required in poultry production to the grower on credit basis which the grower has to repay over his term of contract. He says that over the period of three years when the plaintiff was incarcerated and undergoing trial he incurred huge losses to his poultry business. He says that he was aware of the plaintiff being remanded in custody and that he resumed the poultry production only in early 2006.

22. In this affidavit he calculated the plaintiff's loss at approximately K2,000,000.00

23. In cross-examination he confirmed that Annexure A to his affidavit referred to transactions the plaintiff had conducted with Niugini Table Birds up to the period of December 2002. He was asked whether he had any evidence relating to the transactions between the date of arrest and end of 2003. He replied that he did not have those information and that those information was with Niugini Table Birds. He gave similar answers in respect of the period 2006 -2007.

24. The next witness was a Mr Wallis Pingin. He too had sworn an affidavit. He identified the affidavit and was then cross-examined. His evidence in short, is that Mr. Nayos had a main operating account and several term deposits. Those term deposits were closed on the 8th of August 2003 and 2nd of September 2003. Apart from that his evidence was a little bit confusing at times.

27. The issue to be determined is whether the plaintiff is entitled to damages under the various heads of claims he has claimed.

28. Before I address that issue I think it is relevant to restate some general principles. The first is that once a default judgment is entered the factual elements of the causes of action as pleaded, and their legal consequences, are taken as proven (William Mel v Coleman Pakalia & Ors (2005) SC 790).

29. Further the Court must assess damages by checking, in relation to each head of damages being claimed at trial that it has been claimed in the pleadings and that there is evidence to support it (Michael Buna v Independent State of Papua New Guinea (2004) N2696).

30. Moreover the plaintiff has the onus of proving his loss on the balance of probabilities. The plaintiff's evidence, if necessary ought to be corroborated by independent evidence (Albert Baine v The State [1995] N1335, Kopung Brothers Business Group v Sakawar Kasieng (1997) PNGLR 331).

32. Mr. Niniwale has submitted that the plaintiff is entitled to an award of damages for wrongful arrest, false imprisonment and malicious prosecution over and above the amounts awarded in several cases that he has sighted. He submitted that an important fact about the present case is that the charge and the allegations of murder against the plaintiff was fabricated by the second defendant. He submitted that an amount of general damages for loss, inconvenience and suffering of K50,000.00 would be appropriate in the circumstances of this case.

33. Mr Ninawale relied on the National Court decisions of David Kofowei v August Siviri & Ors (1983) PNGLR 449, Pawa Kombea v Semal Peke [1994] PNGLR 572, Lucas Roika v Peter Wama & Ors [1995] N1373, David Hauya v The State (2001) N2109, Teine Molomb v The State (2005) N2861. Mr. Ninawale submitted that the case of Lucas Roika v Peter Wama and Pawa Kombea v Semal Peke are helpful.

35. The authorities Mr Ninawale has referred to and relied on are not binding on this Court. Nevertheless they offer useful guidelines as to the range of awards that can be awarded for or to a plaintiff under this heading. Furthermore the awards that were granted in David Kofowe was in 1983. In that case the plaintiff was apprehended by police allegedly for being in possession of stolen property. He was taken to the police station and detained for four days. He was assaulted and subjected to inhuman treatment. The plaintiffs sued for false imprisonment, assault, negligence and breach of Constitutional rights. False imprisonment is the cause of action closely akin to malicious prosecution. He was awarded a total award of K8,300.00.

36. In Pawa Kombea v Semal Peke the plaintiff was arrested and detained for four days. He was charged with rape and prosecuted over considerable period of time requiring numerous court attendances. The plaintiff was a prominent member of the community and a politician and the matter was given wide publicity. It was found that the complaint against him was false and he sued for malicious prosecution and false imprisonment and defamation. He was awarded a total of K29,000.00 for general damages.

37. In Lucas Roka v Peter Wama & Ors the plaintiff who was then Premier of
Western Highlands Province was charged with misappropriation of some money. He was committed to stand trial in the National Court. In the National Court the Public Prosecutor filed a Nollie Prosequi, discharging the plaintiff. About some six months later in February 1994 the plaintiff was again charged with the same offence. Sometime later the Public Prosecutor again filed a Nollie Prosequi stating the same reasons he gave for filing the first Nollie Prosequi. The plaintiff sued for malicious prosecution and the court awarded him general damages of nine thousand kina (K9,000.00).

38. In David Hauya v The State, the plaintiff owned and operated a liquor outlet. He was arrested and charged for selling liquor without a license. He was remanded in custody and the beer was confiscated. He was tried in the District Court and acquitted. After his acquittal he asked the policeman for the return of his beer but the defendants were unable to return the beer and instead they recharged him with the same offence. He was again tried in the District Court but this time he was found guilty and sentenced to six months imprisonment which he served. After his release the plaintiff sued for wrongful arrest, false imprisonment, malicious prosecution, breach of Constitutional rights and conversion. At trial on assessment of damages his Honour Justice Sakora found that the defendants had acted unlawfully and had been guilty of blatant manipulation of the legal and judicial system and deliberate abuse of the State power. He did not award any claim for general damages for pain and suffering and loss of amenities for life. However he awarded a total sum of K57,100.00 which comprise of the following:

Wrongful arrest
False imprisonment
Malicious prosecution
Breach of Constitutional rights
Detention and conversion of thirty cartons of beer including interest
Cost
Grand Total

K10,000.00
K10,000.00
K18,200.00
K 6,000.00

K 2,900.00
K 7,000.00
K57,100.00

39. More recently in Kolokol v Amburuapi (2009) N3571 the plaintiff was walking with friends near a public road. Upon seeing the police he ran away. He was chased on suspicion of being involved in an armed robbery. He was caught, assaulted and shot in the leg and foot, then detained in custody for three days before being taken before a Court which granted him bail. He sued the police officers who assaulted him and shot him and the State claiming general damages, compensation for breach of human rights, special damages and exemplary damages. Default judgment was entered against the defendants with damages to be assessed. A trial on the assessment of the damages was conducted.

40. My brother Justice Makail held that compensation for breach of human rights should be assessed separately from general damages (covering pain and suffering, loss of functionary of the plaintiff's leg etc...). He assessed general damages at K25,000.00. He also found the plaintiff's human rights had been breached on four distinct occasions namely:

On each of those occasions he found the three of his human rights were breached namely:

He was awarded K5,000.00 each for each of the four distinct breaches totaling K15,000.00 in compensation. He also found that the breach of Constitutional rights was so severe or continuous as to warrant an award of exemplary damages of K10,000.00. The total amount of damages awarded was K55,204.00. Interest was calculated and added to the award making a total judgment of K71,986.00.

41. In Lamon v Senior Constable Baumai (2010) N3920, the police entered a village and arrested and detained a number of young men who were plaintiffs on suspicion of involvement in a murder. The plaintiffs were subjected to torture and inhuman treatment by the police and detained for an extended period without charge. In a previous trial they established a cause of action for breach of human rights against the State, the Commissioner of Police and seven police officers with damages to be assessed. On the trial of assessment of damages the plaintiffs sought three categories of damages:

"That there are at least two ways of assessing damages in human rights cases. The first is to identify the different causes of action and award damages or compensation for each cause of action. A breach of human rights or constitutional right is properly regarded as a discrete cause of action. An alternative approach is to award just one global sum of damages or compensation for all causes of action.

42. In this particular case in view of the terms of the application enforced on the human rights and the share number of human rights breeches, it was held that it was appropriate to award a global sum of damages, covering compensation and general damages, for each plaintiff and refer to it as "reasonable damages" as per Section 58(2) of the Constitution. In addition it was appropriate to award its plaintiff a sum of "exemplary damages", that term also being used in Section 58(2) of the Constitution.

Nail Lamon

General damages

Exemplary damages

Interest

Total Sum

Singlia Mafuk

General damages

Exemplary damages

Interest

Total Sum

Andrew Wangiak

General damages

Exemplary damages

Interest

Total Sum

Mupape Marp

General damages

Exemplary damages

Interest

Total Sum

Namure Kanai

General damages

Exemplary damages

Interest

Total Sum

K100,000.00
K 25,000.00
K 59,000.00
K184,000.00

K 70,000.00
K 17,500.00
K 41,300.00
K128,800.00

What is clear from all these authorities is that each case should be assessed and determined on its own facts and circumstances.

44. In the present case I am satisfied on the undisputed evidence from the plaintiff that he suffered greatly from the actions of the first three defendants. There are no doubts in my mind that his arrest and subsequent detention, numerous appearances at the Committal Court and the National Court brought shame and humiliation to him. I am sure he was embarrassed by what had happened to him. This is particularly so when one considers the evidence that the charges brought against him was fabricated right from the beginning by the defendants, in particular the second defendant.

45. I come to the conclusion that a reasonable amount given the circumstances of this case would be awarded under this head. I award the sum of K 100,000.00 for general damages.

46. In David Haluya (supra), Sakora J said this in relation to this particular head of claim:

"This thought is defined as any total restraint on the liberty of the person for however short a time, by the use of threat or force or confinement. Once the imprisonment is proved it is up to the imprisoner or the police to prove that it was lawful. This is a same type of confinement or detention and visits in the criminal law".

47. "Actions for false imprisonment protects the interest of freedom from physical restraint and cohesion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either actively causing his confinement or preventing him from exercising his privilege of leaving the place he is in...." The law of Torts by John G Fleming (7th Ed., LBC, 1987). The learned author said that "False is to be understood in the sense of wrongful" and adding further that "False imprisonment arising from an improper arrest of a suspect resembles the tort of malicious prosecution, which consist of maliciously and without reasonable cause instituting a groundless criminal prosecution." In the circumstances of this case I award a sum of K 20,000.00 under this head.

"Malicious prosecution is defined as an abuse of the Court process by wrongfully setting the law in motion on a criminal charge. This must have been done without reasonable cause and instituted or continued maliciously." The adjective malicious is derived from the noun malice, a desire to cause harm or difficulty to others, ill will, harmful intent (Oxford Dictionary). It maybe the original arrest was unlawful although the person detained for an excessive period.

49. In the present case it is clear from the evidence that the plaintiff's arrest and detention was based on the fabricated evidence by the second defendant whilst acting in the course of his duties. The plaintiff was wrongfully arrested, falsely imprisoned and subsequently maliciously prosecuted.

50. In the end I am also satisfied that there should be damages awarded under this head of claim. I award an amount of K20,000.00.

51. I am satisfied on the evidence that the plaintiff has proved that several of his Constitutional rights have been breached. I find that on the total of the evidence three of his human rights were breached. These were:

52. Special damages normally include directly incurred expenses such loss of income whilst the injured person was away from work, doctors or medical expenses a patient may have paid and to some extent the loss of income and profits. What is important about this head of damages is that it must be the direct result of the wrong alleged.

53. The aim of special damages is to "as merely as possible get that sum of money which will put the party who has been injured or who has suffered in the same position as he would have been if he had not sustained the wrong for which he is now being compensated. Consequently they are easily accessible. There are losses directly flowing from the unlawful actions of the defendant.

54. However in a support for claim for special damages, the plaintiff must produce sufficient evidence substantiating the claim (Anis v Sikiot & State (1995) N1350, Aina Mond v State (2004) N2638).

55. The plaintiff submits that the evidence he has produced supports his claim for special damages. He claims special damages for:

56. I deal with the claim for loss of income from the shop first. In his affidavit (Exhibit P1) he stated that he owned and operated a retail store called Homoqore J Nayos Trading. In that affidavit he deposes that he has a company called Nayos Enterprises Limited (See Annexure A to his affidavit). Then on the same affidavit he attaches a receipt by the Lae Urban Local Level Government dated 16th of February 2004 which shows a receipt issued to Nayos Enterprise Limited. Further the License to trade issued by the Lae Urban Local Level Government (License No. 274 2005) issued to Homoqore Nayos Enterprises Pty Ltd. This license is for the period of 2005.

57. In addition, the Annexure C to his affidavit also refers to a company called Nayos Enterprises Limited. This is a license issued under the Food and Sanitation Act 1991 and was issued to Nayos Enterprises Limited to operate a mini supermarket.

58. Further Nayos Enterprises Limited is not a party to the proceedings. As it is not a party to the proceedings it is not entitled to claim any damages whatsoever.

59. In other words there is confusion and ambiguity of the plaintiff's own evidence as to who was the proper person operating the trade store. The plaintiff does not explain anywhere in his evidence this ambiguity and inconsistencies on this aspect of his claim. I am therefore not certain as to whether the trade store was operated by Nayos Enterprises Limited, Homoqore Nayos Enterprises Pty Ltd or the plaintiff personally.

60. Given these inconsistencies and given that the plaintiff has not explained or clarified this inconsistent evidence I am not prepared to award any special damages for loss of earnings from the shop.

61. Unlike the confusing evidence in relation to the claim for loss of income from the trade store, the evidence in relation to this head of the claim is overwhelming. All the evidence from the plaintiff shows that the plaintiff had been conducting a chicken growing business for a long period of time.

62. It is equally clear and I so find that on the evidence from the date of his arrest in 2003 he was remanded in custody up until 8th of July 2004 his chicken business did not operate. This business suffered loss and damages. There was no income for that period. The period is approximately fourteen months.

63. From the time he was released on bail to the date which he was acquitted that is from the 8th of July 2004 to 26th of April 2005 there is no evidence from the plaintiff that he conducted any poultry business during the time. However he did say that he could not restart chicken business because Niugini Table Birds were reluctant to do business with him because of the allegations against him.

64. On the other hand Annexure E to his affidavit contains a statement from the Broiler Manager of New Guinea Table Birds dated 03rd of June 2005 where that person says that their records indicated the substantial losses were made on the period 23rd of May 2003 to 28th of April 2005. That person states that no chickens were received from the plaintiff for a period of approximately thirty months which is ninety weeks. This piece of evidence is confirmed by the calculations done by the Ravungs & Associates on this particular business.

65. Therefore doing the best that I can I would accept the plaintiff did not sell any chickens for a period of ninety two weeks. Accepting that Mr. Nayos then earned a net figure of K20,000.00 he would have earned K300,000.00. But that is not the case because the evidence shows that he did not earn twenty thousand kina per sale. In fact the amounts varied and so allowance must be made for that.

66. Again doing the best that I can I would estimate that an amount of K15,000.00 per sale is appropriate. Accordingly K15,000.00 multiplied by fifteen sales over that period in question gives a figure of K255,000.00 in gross.

67. As for loss of salary I accept that he did not earn a salary whilst he was in custody. The evidence is that he was earning K700.00 kina per fortnight. The period of loss is from the 8th of May 2003 to 8th of July 2004, a period of approximately thirty one fortnights. There will therefore be an award for K21,000.00

68. As for the loss of Interest Bearing Deposit savings and accrued interests I am not satisfied that I should award this. Whilst there is some evidence that because of his circumstances he withdrew these monies I am not satisfied that I should award this amount.

69. As for exemplary damages I am satisfied that the first, second and third defendants had acted maliciously in pursuing the charge and apprehending and detaining the plaintiff. Given the overwhelming evidence I would award a sum of K30,000.00 against the defendants as exemplary damages.

70. In so far as interest is concerned, I am conscience of and bear in mind the principles and the guidelines set by the Supreme Court on the issue of interest in National Capital District Commission v Robert Dademo SCA No. 139 of 2011 delivered at Waigani on the 28th of June 2013 (Injia CJ, Sawong & Murray JJ). The Court in that case discussed extensively and set some principles in regard to award of interests on a judgment sum. The Court held that the award of interest is discretionary having regard to all relevant considerations including the following:

71. In this case, bearing in mind the principles that I have alluded to, I am satisfied that this is a case where interest should be awarded. As to the rate of interest, the plaintiff has claimed 8% interest. The trial on the amount of damages was not prompt. This was for a variety of reasons, such as unavailability of trial Judge, or unavailability of trial counsel and so forth. It is not so easy to pinpoint with any accuracy the cause of delay in bringing the matter on for trial. As to whether interest should be awarded for the whole or part of the period calculated from the time the cause of action arose and the date of judgment, I think that interest should be awarded from the time the cause of action arose. The reasons for this, is that this was a very bad case where the agents and servants of the State used and abused their power to apprehend, detain and put on trial an innocent person. This was a deliberate abuse of police powers, where the second defendant engineered the whole unlawful process, which led to the plaintiff suffering serious financial losses. If it wasn't for this, the plaintiff would not have suffered any loss. For the same reasons, I would award interest on the whole sum of damages but at different rates. I would award interest as follows:

72. I do this for the simple reason that the plaintiff was obliged to take proactive steps to prosecute his case. From the date of default judgment to the trial on assessment, a period of nearly eight years had lapsed. In those circumstances and for reasons, I have given earlier, in my view it would be unjust to award 8% given the circumstances I have alluded to.

73. Thus for the period 7th September 2006 to today (22nd April 2014), I award interest on the whole sum of damages at 4% which comes to a figure of K142,178.88.

General Damages for pain, suffering and humiliation
Breach of Constitutional right, false imprisonment and Malicious prosecution

Exemplary Damages

Loss of Salary
Loss of Income from Chicken business
Interest

Grand Total

K100,000.00

K 60,000.00
K 30,000.00
K 21,000.00
K 255,000.00
K 266,585.40
K 732,585.40

76. I order that judgment be entered for the plaintiff against the defendants in the sum of K 732,585.40.

_____________________________---____________________________________
Rageau Manua & Kikira Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyers for the Defendant

National Court of Papua New Guinea

Nayos v Gawi [2014] PGNC 244; N5667 (22 April 2014)