N7697
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) No. 790 OF 2011

TERRY MAPU
Plaintiff

AND
CONSTABLE JOHN KARIAP
First Defendant

AND
ANTHONY WAGAMBIE
COMMISSIONER OF POLICE
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND
CONSTABLE KEASU KORUA
Fourth Defendant

Waigani: Tamate, J
2018: 21st May
2019: 14th February

HUMAN RIGHTS- Enforcement of breach of human rights pursuant to Section 57 and 58 of the Constitution – Whether the rights under Sections 32, 37, 42, 44 and 53 of the Constitution have been breached by Police Officers?

PRACTICE AND PROCEDURE- Trial on liability – Whether State is vicariously liable for tort of negligence committed by Police Officers in the course or scope of their employment pursuant to Section 1(4) of wrongs (Miscellaneous and Provisions) Act. 

Facts

Plaintiff instituted writ of summons proceedings against the defendants for enforcement of his human rights pursuant to Section 57 and 58 of the Constitution. He claims that first and fourth defendants breached certain of his rights under Sections 32, 37, 42, 44 and 53 of the Constitution. He alleges the Police Officers concerned acted within the scope of their duties but were negligent in their duties for unlawfully assaulting the victim without any lawful excuse or jurisdiction.

Plaintiff died sometime after filing this proceeding and was substituted by his brother upon an application which this Court granted pursuant to Order 5 Rules 10 and 12 of the National Court Rules.

Held:

(1) Plaintiff has proven by evidence on the balance of probabilities that there was breach of rights of one Barnabas Mapu under Sections 32, 37, 42, 44 and 53 of the Constitution.
(2) State is vicariously liable for the tortuous actions of the first and fourth defendants.
(3) Judgment on liability is entered against the State.
Cases Cited:

Jack v Karani [1992 PNGLR 392
John Pias v Michael Kodi and Ors [2004] N2690
Aire v Togoi [2016] PGNC 235; N6434
Vincent Kerry v The State [2007] N3127
Pinga v Inguba [2012] PGSC13; SC1189
More v The State [1998] PNGLR 290
Philip Nare v The Independent State of Papua New Guinea; SC1584
Lina Kewakali v The State [2011] SC1091
Mali Pyalia & Ors -v- Chief Inspector Leo Kabilo &The State [2003] N2492
State v Kofowei & Ors [1987] PNGLR 5
Dambe v Peri & The State [1991] PGNC31
Lanyat v Wangalo [1996] PGNC 44
Bob Kol v The State [2010] N3912

Counsel:

Ms Sharon Tongamp, for the Plaintiff
Ms Charity Kuson, for the Defendant

JUDGEMENT

14th February, 2019
1.	TAMATE, J: This is a trial on liability on a claim for damages by the plaintiff against the defendants. The trial was by affidavit evidence which the parties had filed and relied on. These affidavits were formally tendered in Court during the trial. The plaintiff has filed this proceedings in support of his claim for damages as a result of alleged breaches and violations of his constitutional rights by first and fourth defendants which had resulted in serious grievous bodily injuries sustained by the Plaintiff.
2.	Plaintiff claims the defendants were negligent during the course of their employment and within the scope of their duties by unlawfully detaining the plaintiff and assaulting him without any lawful justification.
The Issue for Trial
3.	The issue for the trial were:
o	(i) Whether first and fourth defendants were negligent in the course of their duty when they apprehended the victim and unlawfully assaulted and caused him grievous bodily harm?
o	(ii) Whether State is vicariously liable for the actions of the first and fourth defendants and their colleagues pursuant to Section 1((4) of Wrongs (Miscellaneous Provisions) Act.
Evidence
4.	Plaintiff’s evidence consisted of the following affidavits:
o	(1) Affidavit of Terry Mapu sworn and filed on 12 April 2017.
o	(2) Affidavit of Margaret Barnabas sworn and filed on 12 April 2017.
o	(3) Affidavit of Daniel Kera sworn and filed on 12 April 2017.
5.	In brief the evidence in support of the plaintiff’s claim gives an account of the apprehension of the late Barnabas Mapu (BM) while he was at Badili bus stop area with his family on the afternoon of 03rd September, 2009. He was pulled by the collar of his shirt and forced onto the vehicle a hired white land cruiser bearing the registration BCN 517 with three (3) other Policemen. They were all in their police uniforms and armed.
6.	Deceased was picked up and driven in this vehicle to Pari road where he was assaulted very badly by the fourth defendant while the others watched and allowed the beatings to continue.
7.	A baseball bat was used in assaulting the victim (Barnabas Mapu) with which resulted in victim sustaining a broken hand, fracture of the bone to his left hand and ankle. He also sustained severe swelling to his face, legs and others parts of this body. A chain was also tied around his neck causing pain and bruises to his neck.
8.	Victim was in great pain and was ordered to run. He managed to stagger to a house near the side of the road and fell down. He was assisted by settlers who witnessed the beatings and gave him water and assisted him in a vehicle to Kaugere Clinic and later to Port Moresby General Hospital.
9.	Prior to going to the hospital victim and the cab driver went and picked up victim’s wife and child at Badili bus stop and went to Kaugere clinic and then to Port Moresby General Hospital. (Affidavit of Margaret Barnabas).
10.	Terry Mapu: He substituted his deceased brother in this cause of action by his late brother whose rights were breached. He came to Port Moresby upon hearing of his brother’s injuries and assisted him with his medical treatment and reviews by bringing him to the hospital. He also conducted enquiries about the incident victim was involved and tried to collect information about the police officers who were involved in the unlawful beating of the victim (Barnabas Mapu).
11.	Daniel Kera: He is the person who assisted victim’s family with food and money and transported victim to and from the hospital for his reviews and medication. He was a very close friend of victim prior to his death. He also assisted the plaintiff to gather evidence for purposes of commencing civil proceedings against the defendants for damages and compensation for the pain and suffering victim went through.
12.	Upon their enquiries Police provided a letter confirming that the fourth defendant was one of the Police Officers who assaulted and injured the victim (Barnabas Mapu). He was arrested, charged and prosecuted for grievous bodily harm of Barnabas Mapu where he was sentenced to three (3) years in hard labour. As a result of this confirmation an application for joinder was made before this Human Rights Court and fourth defendant was included as a party to this proceeding.
Evidence by Defendants
13.	Defendants have relied on the affidavit of one Florian Luvi filed on 12 August 2018. His evidence basically talks about the powers of the Police (RPNGC) under Section 197 of the Constitution and directives and authorization for Police Officers to operate on during the course of their duties and functions by virtue of the Constitution, Police Act, Arrest Act, The Royal Papua New Guinea Standing Orders, Police Circulars, and other laws or legislations of Papua New Guinea.
14.	He further emphasised that every Police Officer is required to perform his or her duties according to the laws of this country and within the scope.
15.	In 1992 and 1994 the then Police Commissioner Henry Tokam issued various circulars: No. 34 of 1992 – Wilful destruction of property by Police; and No. 16 of 1994 – Police Misbehaviour as a result of complaints by public concerning unlawful actions of Police Officers.
16.	The defendant (State) confirms that first and fourth defendants were police officers who unlawfully assaulted plaintiff’s late brother Barnabas Mapu. The defendants had acted outside the scope of their duties therefore State should not be liable but the officers themselves should be liable for their own actions. In support of its submission and defence State has relied on the cases of Vincent Kerry v The State [2007] N3127, Pinga v Inguba [2012] PGSC13; SC1189, More v The State [1998] PNGLR 290.
17. The State has relied on the following cases in support of their submission that the first and fourth defendants acted outside the scope of their duties and employment.
Law
A. Wrongs (Miscellaneous Provisions) Act 1975.
(1) Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject–
(a) in respect of torts committed by its servants and agents; and
(b) in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and
(c) in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.
(2) Proceedings do not lie against the State by virtue of Subsection (1)(a) in respect of an act or omission of a servant or agent of the State unless the act or omission would, apart from this Division, have given rise to a cause of action in tort against the servant or agent or his estate.
(3) Where the State is bound by a statutory duty that is binding also on persons other than the State and its officers, then, subject to this Division, the State is, in respect of a failure to comply with that duty, subject to all liabilities in tort (if any) to which it would be subject if it were a private person of full age and capacity.
(4) Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.
(5) An Act or subordinate enactment that negatives or limits the amount of the liability of a Department of the Government or officer of the State in respect of a tort committed by the Department or officer applies, in the case of proceedings against the State under this section in respect of a tort committed by the Department or officer, in relation to the State as it would have applied in relation to the Department or officer if the proceedings against the State had been proceedings against the Department or officer.
(6) Proceedings do not lie against the State by virtue of this section in respect of anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature vested in him, or responsibilities that he has in connection with the execution of judicial process.
B. Constitution of Papua New Guinea, 1975.
The relevant provisions of the Constitution under which the Plaintiff claims or alleges that first and fourth defendants breached his rights are: 
➢ Section 32 – Right to Freedom
➢ Section 36 – Freedom from inhuman treatment
➢ Section 37– Protection of the Law
➢ Section 42– Liability of the person
➢ Section 44 – Freedom from Arbitrary Search and Entry
Submissions
18. The plaintiff has submitted that the first and fourth defendants were members of the Royal Papua New Guinea Constabulary during the time of the incident on 03 September 2009 between the hours of 1:00pm and 2:00pm. They were doing their routine patrols along the streets when they apprehended Barnabas Mapu, placed him in a police hired vehicle and took him to an area along the road between Sabama and Pari village here in Port Moresby. They then assaulted him in the manner described above per his statement of claim.
19. The plaintiff submits that defendants were acting in the scope of their employment when they committed the tort that resulted in breach of Barnabas Mapu’s rights under the Constitution. Plaintiff relies on the following cases in support of his submissions:
•	Jack v Karani [1992] PNGLR 392
•	John Pias v Michael Kodi and Ors [2004] N2690
•	Aire v Togoi [2016] PGNC 235; N6434
20. Plaintiff maintains that the first and fourth defendants were on duty in the city in the normal course of their employment and performing their role to maintain peace and order when they unlawfully assaulted the late Barnabas Mapu. They were dressed in their Police uniforms and armed.
21. As in the case of Jack Karani, a Police Commander short and killed a man for no good reason. The Police Commander was returning from a function in his police uniform and in the police vehicle when he shot the deceased with a police issued pistol. The Court held that the State was still vicariously liable despite Police Commander been drunk and returning from a function. This did not detract from his position as a senior police officer responsible for law and order.
22. In John Pias v Michael Kodi’s case – The Court held that State was vicariously liable for the actions of the Defence Force Soldiers who were drinking whilst in their uniforms and assaulted the plaintiff and damaged properties in a hotel at Mt Hagen. One of the solider also fired a shot at plaintiff using a firearm that Defence Force had issued to him. Plaintiff was hit in the face with a firearm resulting in the total loss of the right eye.
23. Plaintiff therefore submits that the first and fourth defendants and third defendant (State) should be liable for the injuries caused on Barnabas Mapu during the scope of their duties and employment.
24. First and fourth defendants were negligent in their actions when they failed to give Barnabas Mapu his protection under law when they arrested or detained him. They also stole his personal properties. Plaintiff submits that the three legal elements required for proof of vicarious liability have been established per the case of Aire v Togoi [2016] PGNC 235; N6434.
Defendants Response
25. The first and fourth defendants have not made any submissions. The State (3rd Defendant) has submitted that there are laws and manuals, circulars and Code of conduct for all Police officers to adhere to during the course of their duties and employment. They are taught and trained to observe the rights of the people when effecting arrests or when performing their functions.
26. For any officer to act outside the scope of his or her duty or function the State should not be vicariously liable. The Circulars by the Police Commissioner clearly demonstrate and emphasize the need for Police officers to refrain from unlawful actions resulting in many compensation or monetary claims been brought against the State for Police brutality cases.
27. The State has through its submission and affidavit evidence admits that the first and fourth defendants and their colleagues acted unlawfully when they assaulted and beat up the victim (BM). It is a case where the first and fourth defendants acted outside the scope of their duty to unlawfully assault the victim without any lawful justification. State submits that these defendants went on a ‘frolic’ to commit the assault and inflict injuries on the victim. As a result of that State should not be vicariously liable for their actions
28. They further submit that the members of the RPNGC (Police Force) upon been trained and recruited into the Force are aware of the laws and rules of conduct which they are required to abide by or observe in the course of their employment or duties the State therefore should not be held vicariously liable. The officers concerned should be personally liable for their own unlawful actions.
29. They submit that the three legal elements required for proof of vicarious liability have been established per the case of Aire Togoi (supra).
30. Third defendant (State) denies any liability for the tortuous actions of the first and fourth defendants by virtue of Section 1 of the Wrongs (Miscellaneous Provisions) Act.
31. The law on vicarious liability was defined by His Honour Cannings, in the case of Vincent Kerry v The State [2007] N3127 where he said:
“Vicarious liability is a common law principle by which a legal person (such as the State) is held liable for the acts or omissions of another person or group of persons over whom the first person has control or responsibility. The principle of vicarious liability have been confined by Section 1 (General Liability of the State in tort) of the Wrongs (Miscellaneous Provisions) Act.”
32. The State in its submission has relied on the case of Pinga v Inguba [2012] PGSC13; SC1189, where the Supreme Court held that for State to be held vicariously liable for the negligent actions or omissions of the Policemen the following requirements need to be satisfied:
(i) The policemen as servant or agent of the State must commit 
(ii) the tort of negligence during the course of their duty and within the scope of their employment; (Section 1(1)(a) of the Wrongs (Miscellaneous Provisions) Act.
(iii) The policemen as officers of the State committed the tort of negligence while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law (Section 1(4) of the Wrongs (Miscellaneous Provisions) Act, Chapter 297).
33. The State submits that for the State to be vicariously liable the policemen or its agents must perform their duties within the scope of their employment. If they commit a tort whilst performing a lawful duty the State will be liable.
34. However, where the policemen have committed a tort of negligence outside the scope of their duty or employment the State cannot be held vicariously liable. The tort would deemed to be illegal and criminal in nature as those acts would be done on the frolic of the employee himself hence they would be personally liable.
35. In support of this argument the State has relied on the case of More v The State [1998] PNGLR 290 where the Court held:
“The evidence in this case is that the two policemen who raped the Plaintiff departed from the main group and proceeded to rape the Plaintiff after tying up her boyfriend. Although they were lawfully on the premises to conduct a search pursuant to the Search Warrant, it was not part of their lawful instructions to rape the Plaintiff or any other woman for that matter. They went on the frolic of their own and committed a serious crime which was in no way associated with or related to the lawful instructions given to them. Therefore, even if the policemen involved were identified, the State cannot be held vicariously liable by virtue of S.1 (4) of the Wrongs (Miscellaneous Provisions) Act. Until the policemen involved in the rape are identified and prosecuted in court for the crime, as well as for the tort, the Plaintiff will have to go without a remedy.” (underlined emphasis is mine)
36. In the case of In the Application of Kunzi Waso [1996] PNGLR 218 at p. 224, his honour Jalina, J relooked at the principle of vicarious liability in relation to the State’s liability for the acts and omissions of the police officers generally. He said:
“In the past the Courts have been ordering the State to bear the financial burden on the principle of vicarious liability. This has resulted in the ordinary tax payers footing the bills. It has resulted in moneys that could have been used on development projects such as health and education being used to pay damages. I am therefore going to defer from my brethren. I am of the opinion that when a member of the disciplined forces, be he a soldier, policemen or warder goes beyond the bounds of the law and ends up breaching someone’s Constitutional rights, then he should be made to personally bear the consequences of his actions. The reason for this is simple. The State does not say to the officers on duty “you go and beat up that person badly, you got and burn houses and kill pigs and chickens and rape women”. Not at all. Officers are only told but expected to go and carry out their duties within the bounds of the law. What happens in the field of operation and how far one should go in carrying it out is in the hands of the individual. I believe that by awarding damages against officers individually will result in not only the amount paid by the State damages being reduced but may also reduce the frequency of unruly behavior by policemen and warders and others...” (my emphasis added)
37. It is trite law that each case must be considered on its own facts and circumstances.
38. In determining the issue regarding the principle of vicarious liability I have considered the submissions, evidence and the cases on point provided by the parties.
39. The matters not in dispute are summarised in the following:
•	On 3rd September 2009 the first and fourth defendants were on their daily routine patrol in Port Moresby city when they apprehended (victim) Barnabas Mapu at Badili, Port Moresby area.
•	Victim was brought to an area along the road between Sabama and Pari village near a cemetery and assaulted him with a baseball bat and placed a chain around his neck.
•	Fourth defendant then assaulted victim with the baseball bat causing him very serious bodily injuries resulting in swelling to various parts of his body and factures to his hand and ankle.
•	Victim was later assisted to the hospital by a member of the public in his vehicle.
•	The matter was reported to the police at Badili Police Station where victim and other witnesses gave their initial statements to the Police.
•	Fourth defendant was subsequently charged and prosecuted and found guilty of grievous bodily harm and was sentenced to three (3) years imprisonment in hard labour by Waigani National Court on 05th July 2013.
•	In 2011, victim filed writ of summons proceedings against the defendants.
•	Victim died on 02 October 2012.
•	Upon his death the plaintiff was substituted by his brother TERRY MAPU as the Plaintiff in this proceedings.
•	First and fourth defendants were police officers and were employed by the State during the time of the alleged breaches of victim’s rights.
40. Since the evidence confirms that the first and fourth defendants were police officers and were employed by the State during the time of the alleged human rights breaches the only issue for this Court to determine is:
Whether the State is vicariously liable for the acts and omissions of the first and fourth defendants pursuant to Section 1(1)(a) and 1(4) of the Wrongs (Miscellaneous Provisions) Act?
41. This issue really depends on whether these two defendants were acting within or outside the scope of their duties and in the course of their employment.
42. Considering the facts and circumstances of this case I make the following observations:
a.	The first and fourth defendants were on their daily routine patrol checking on possible offenders for purposes of maintaining peace and order. They were in their police uniforms and in company of three (3) police officers. They were armed. When they came to Badili, bus stop area they stopped and commanded plaintiff (victim) to get on the vehicle.
b.	From that time on victim was in their custody thus they owed him a duty of care and protection of the law under Section 37 of the Constitution.
c.	They did not charge him or bring him to a police station instead they brought him to an area between Sabama and Pari village and assaulted and beat him up in the manner described above.
d.	As conceded or admitted to by the State the assaults were unlawful and unnecessary. The beatings he received were in breach of the laws and manuals and circulars issued by the third Defendant.
e.	The first and fourth defendants and their colleagues were negligent in their actions when they committed this tort and while in their police uniforms and using a police hired vehicle.
43.	Before making a finding on liability I also take note of the case of Philip Nare v The Independent State of Papua New Guinea; SC1584 and the various cases that were also cited and referred to in that case. The Court held in that case that State is vicariously liable for actions and omissions of its employees or agents even though the tort feasors are not identified or named as parties in a court proceeding in relation to a claim for damages or compensation against the State. The Supreme court overruled the earlier decision in the case of Lina Kewakali v The State [2011] SC1091where the Court held that it was required that the tort feasors must be named or joined as parties in a proceeding so as to have a nexus to the claim and a cause of action against the State.
44. The Court in Nare v The State (supra) held that this was not a good law. It said:
“The primary duty of the Court is to give justice. It cannot be just to deny a remedy otherwise established against the State on the basis that another person may also be a tort feasors. That result would reduce the citizen’s protection against unlawful acts by agents of the State, and be in breach of s. 37 of the Constitution (equal protection of the law).”
45. In the case of Mali Pyalia & Ors -v- Chief Inspector Leo Kabilo & The State [2003] N2492, Davani, J held that: ‘it is a misconception of the law to seek dismissal of an action where a plaintiff has not named the policemen involved in the raid, as it is not necessary to name them under the principles of vicarious liability of a master and servant relationship. The principles of vicarious liability makes it implicit that a servant always has the authority of his master when performing his duties and functions and the master is liable for the actions and omissions of his servant. The onus is on the plaintiff to establish by appropriate evidence that the tortfeasor is a servant of the master.
46. In State v Kofowei & Ors; [1987] PNGLR 5 the Supreme Court (Kidu, CJ, Kapi, DCJ, Woods, J) considered the basis for liability attaching to the State by reason of the wrongful acts of police officers. It held that at common law, a constable exercises, not a delegated, but an original authority. As a result, he or she is not subject to direction in exercising authority as a peace officer – see Enever v The King [1906] 3 CLR 696, 977.
47. In Dambe v Peri & The State; (1991) PGNC31, Amet, J (as he then was) found the State vicariously liable when the deceased’s dependants claimed for damages for their loss as a result of a police officer’s negligent action when firing upon the deceased. 
49. In Lanyat v Wangalo; [1996] PGNC 44, during a police raid on a village for the purpose of quelling tribal violence the Police caused wanton damage to property. State was found vicariously liable for the actions of the Police officers who were authorized by their hierarchy to conduct a raid as part of their normal function to restore peace between warring tribes. The Court held that their mode of conduct in such situation was a matter in the discretion of the Police Force.
50. Injia, J (as he then was) stated....“it is trite law that the State as their employer can be held responsible for the wrongful actions of unidentified policemen.” His Honor further stated: 
“It is correct to say that it may never be part of their functions to deliberately destroy properties, etc., as a means of restoring peace among warring clans because such instructions would never have been issued lawfully by the Government. But in a tribal fight situation, it may be that the categories of modus operandi open to the policeman may not be closed. The onus is on the State as the nominal Defendant to produce evidence to show that what the policemen did was totally removed from the domain of authorized actions in a tribal fight situation so that the State will not be vicariously liable for their actions. That has not been done in this case.”
51. In Bob Kol v The State [2010] N3912. The State was held vicariously liable for the damage for destruction of properties upon a raid conducted in retaliation for an attack on a police officer. The Police officers had gone there to effect arrest on the attackers of a Police officer who was earlier travelling on a PMV bus from Lae to Mt. Hagen. During the raid the Police officers caused damages on the property of the Plaintiff who was the owner of the tavern where the alleged suspects were drinking.
Finding on liability
52. From the cases that have been referred to in this judgment it is obvious that the Courts on many occasions have found the State to be vicariously liable as a result of the actions of its employees or agents pursuant to Section 1(1) and 1(4) of Wrongs (Miscellaneous Provisions Act 1975. Most of the cases involve the unlawful conduct of Police officers in their uniforms during the course and scope of their duties and employment.
53. The Police officers are employees of the State and are no doubt agents or servants of the State whilst conducting their duties and functions mainly in maintaining law and order in the community at large. They have their independent powers that are given to them by legislation, statutes, Manuals or circulars given to them by the Police Commissioner as their superior. 
54. In the present case the first and fourth defendants were performing their normal Police routine duties when they apprehended and assaulted the victim in the manner described above. Evidence shows that the assaults took place while these defendants were in their Police uniforms in the company of three other Police officers, armed and were travelling in a hired vehicle.
55. This was not a Police raid in a village or upon a community or on a warring clan. These officers picked up an individual and whilst in the course of their employment and whilst performing or purporting to perform their duties they unlawfully and brutally assaulted the victim causing him very serious injuries and breaching certain of his rights under the Constitution. They were negligent in their handling of an innocent man who had not committed a wrong. He was never charged for an offence. They failed to give him the protection of the law under Section 37 of the Constitution.
56. The fourth defendant was identified, arrested and charged for the crime of grievous bodily harm. He was convicted and sentence to 3 years IHL for the criminal offence he committed on the victim. This confirms that the actions of the first and fourth defendants were unlawful thus they are liable for the tort of negligence under Common law to the victim Plaintiff. 
Is the State vicariously liable for the acts and omissions of the first and fourth defendants?
57. I am of the view that the first and fourth defendants acted within the scope of their duties when they committed the tort of negligence resulting in breaches of victim’s rights. As a result of this finding and upon the discussions that have been advanced above I find the State vicariously liable for the unlawful actions of first and fourth defendants resulting in the breaches of the Plaintiff’s rights as alleged in his statement of claim.
58. The Police Commissioner who is the second defendant is not the employer of the first and fourth defendants. Evidence shows that he had issued circulars from his office to the Police Force instructing officers to observe the law and perform their duties according to the laws, statutes and Police manual with a view to stop unnecessary Police brutality behaviour and actions. He never instructed the defendants nor his officers to unlawfully assault victim or any other person for that matter. I find that he is not liable for the actions of the first and fourth defendants.
59. There is no evidence against the first defendant that he personally or physically assaulted the plaintiff victim therefore I find that he is not liable for any damages sought by the Plaintiff.
60. For the fourth defendant I find that he is the person who physically assaulted the victim Barnabas Mapu as evidence confirms he was convicted and sentenced for the injuries he inflicted on the victim. He should be liable to pay exemplary damages for his unlawful actions. 
Q. Has Plaintiff proven the factual allegations?
61. From the affidavit evidence provided I am satisfied that the factual allegations regarding breaches of human rights by the defendants have been proven by the Plaintiff on the balance of probability.
Q. Whether the Defendants are liable for breaches of human rights pursuant to Section 32, 36, 37, 42, 44 and 53 of the Constitution?
62. As per the findings made above I find that the Third Defendant (State) is vicariously liable for the actions of the 1st and 4th Defendants to pay damages for breach of these rights under the Constitution. 
ORDERS OF THE COURT
63. The formal orders of the Court are:
1.	Judgment on liability is entered against the State (Third Defendant) on the principle of vicarious liability.
2.	Assessment on damages shall be by a separate trial. 
3.	Costs of this proceeding shall be paid by the State to be taxed if not agreed.
Judgment accordingly.
___________________________________________________________
Kimbu & Associate Lawyers: Lawyer for the Plaintiff
Solicitor General: Lawyer for the Defendants