N9683

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 672 OF 2019

SUSAN PAULUS FOR AND ON BEHALF OF HERSELF AND HER DAUGHTER SALOME PAULUS
Plaintiffs

V

RACHEL PAULUS 
First Defendant

PROBATIONARY CONSTABLE GUNNAN VIOLA LIZA
Second Defendant

CONSTABLE LISA PAUL
Third Defendant

CONSTABLE NATHAN MANEKUMBU
Fourth Defendant

CONSTABLE AIDEN POSONG
Fifth Defendant

PROBATIONARY CONSTABLE VERNON WAMAJENGA 
Sixth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

Waigani: Narokobi, J
2021: 16th August 
2022:  12th May

TORTS – Negligence - Whether Defendants were negligent in the discharge of their duty of care to the Plaintiffs- False Imprisonment – Whether the Defendants falsely imprisoned the Plaintiffs –Malicious Prosecution -Whether one of the Plaintiff was maliciously prosecuted –Claims for Negligence, False Imprisonment and Malicious Prosecution established.

HUMAN RIGHTS – Constitution, s 57 (enforcement of guaranteed rights and freedoms)–Whether plaintiff’s human rights were violated –s 36, Freedom from inhuman treatment- s 37, Protection of the law – s 41 – Proscribed acts - s 42, Liberty of the person -s 52 – Freedom of Movement – Violation of ss 36(1), 41, 42 and 53 of the Constitution established.

LIABILITY – Whether tortious actions and violations of human rights by the Defendants were in the course of employment – Vicarious liability established against the Seventh Defendant – Plaintiffs entitled to damages and compensation under s 58(2) of the Constitution

The Plaintiff and her daughter were brought to Port Moresby by the First Defendant. They are sisters. They lived together. The following year, the Plaintiff engaged in selling goods in the market, and enrolled her daughter at Ted Diro Primary School at Murray Barracks. For some reason the First Defendant was unhappy with this arrangement. She bought tickets for the Plaintiff and her daughter, and with the assistance of the Police officers (named as Defendants), forcefully took her to the airport to board a flight to Wewak. She resisted and was brought to the Cop Shop at the airport terminal, was assaulted physically and verbally, and detained for some eight hours and then charged under the Summary Offences Act on the information of the Third Defendant. She was taken to the Boroko Police station and detained there. She was later released after the charge was struck out by the District Court.

Held:

(1)	The Plaintiffs’ factual allegations in the statement of claim and deposed to in their affidavits as to what occurred are proven on the balance of probability.

(2)	Consequently, the Plaintiffs have established the following causes of action against the Second, Third, Sixth and Seventh defendants:

•	Negligence;
•	False Imprisonment;
•	Malicious Prosecution; and
•	Violations of ss 36(1), 41(1), 42 and 52 of the Constitution.

(3)	The Seventh Defendant is vicariously liable for the actions of the second, third and sixth defendants, and shall pay the Plaintiffs reasonable damages and compensation under s 58(2) of the Constitution.

Cases Cited

In the Matter of an Application by Benetius Gehasa (2005) N2817
Kapi v Kambang Holdings Ltd (2011) N4451
Kofowei v Siviri [1983] PNGLR 449
SCR No 1 of 1986; Re Vagrancy Act (Ch 268) [1988-89] PNGLR 1

Statutes Cited

Arrest Act, Chapter 339
Claims By and Against the State Act 1996 
Constitution
Wrongs Miscellaneous Provisions Act, Chapter 279

Counsel

Ms J Kambao, for the Plaintiffs
No appearance, for the First Defendant, Ms P Ohuma, for the Second, Third, Fourth, Fifth, Sixth and Seventh Defendants

JUDGMENT

12th May, 2022

1.	NAROKOBI, J:  The Plaintiff is Susan Paulus, she sues for herself and on behalf of her daughter Salome Paulus. The claim is by way of a writ of summons filed on 3 July 2019 for negligence, false imprisonment, malicious prosecution, assault, and Constitutional breaches.

Pleadings 

2.	The Defendants are her older sister, members of the police and the State. She pleads that the state should be vicariously liable for the actions of the defendants under the provisions of s 247(2) of the Constitution, s 2 of the Claims By and Against the State Act 1996 and s 1(1) Wrongs (Miscellaneous Provisions) Act Ch 279.

3.	The background to this claim, is that the Plaintiff and her daughter were brought to Port Moresby by the First Defendant. They are sisters. They lived together. The following year, the Plaintiff engaged in selling goods in the market, and enrolled her daughter at Ted Diro Primary School at Murray Barracks. For some reason the First Defendant was unhappy with this arrangement. She bought tickets for the Plaintiff and her daughter, and with the assistance of the Police officers (named as Defendants), forcefully took her to the airport to board a flight to Wewak. She resisted and was brought to the Cop Shop at the airport terminal, was assaulted physically and verbally, and detained for some eight hours and then charged under the Summary Offences Act on the information of the Third Defendant. She was taken to the Boroko Police station and detained there. She was later released after the charge was struck out by the District Court.

4.	The Second, Third, Fourth, Fifth, sixth and Seventh Defendants (Defendants, hereon) deny the claim on the basis that there was a lawful complaint against the Plaintiff which the Defendants acted upon, and there was no harassment, harm or assault inflicted upon the Plaintiff nor were they falsely imprisoned. The First Defendant made no appearance.

Issues 

5.	The issues I must determine are whether the factual allegations have been proven on the balance of probability and if they have been proven, are the Defendants liable for the separate causes of actions the Plaintiff has pleaded in the Statement of Claim. An ancillary issue is who should be liable, if the Defendants are responsible for the actions complained of.

Evidence

6.	The affidavits that were tendered by the parties are set out in the table below.

No 	Date 	Description of document/item tendered	Plaintiff/Defendants Evidence 	Exhibit No.	
1	20.07.21	Affidavit of Susan Paulus filed 22.04.21	Plaintiff’s evidence 	“P1”	
2	20.07.21	Affidavit of Malisa Paulus filed 22.04.21	Plaintiff’s evidence	“P2”	
3	20.07.21	Affidavit of Susan Paulus filed 26.04.21	Plaintiff’s evidence	“P3”	
4	20.07.21	Affidavit of Constable Aidan Posong filed 23.02.21	Defendant’s evidence	“D1”	
5	20.07.21	Affidavit of Constable Nathan Manikambu filed 23.04.21	Defendant’s evidence	“D2”	

Considerations

7.	After reading the affidavit materials and the submissions and hearing Counsel’s submissions I am inclined to accept the version of facts alleged by the Plaintiffs on the balance of probability. I do so for the following reasons.

8.	Rachel Paulus the First Defendant does not refute the allegations made against her by the Plaintiff and corroborated by the Plaintiff and the First Defendant’s brother, Malisa Paulus (Exhibit P2). It is clear from the evidence that the Plaintiff never consented to leave Port Moresby. Her reason amongst others was that she had a daughter still at school. The letter from the school confirms this (Annexure A of Susan Paulus’ affidavit filed 26.04.21, Exhibit “P3”). This explains why the police Defendants were involved in forcefully bringing her to the airport and her refusal to board the flight. At that time there was no charges against her. There was therefore no lawful reason to detain her at the Cop Shop for seven hours after she refused to board the flight. The charges were made-up to justify her detention. This is confirmed by the information laid by the Third Defendant against the Plaintiff being struck out. The primary reason for her arrest was to ensure she left Port Moresby for Wewak, as her host, her sister Rachael Paulus’ generosity had expired.

9.	Since the evidence from the Plaintiff is not very specific on the actual role of each Defendant and on the basis that the Fourth and Fifth Defendant have filed affidavits (Affidavit of Constable Aidan Posong filed 23.02.21, Exhibit “D1” and Affidavit of Constable Nathan Manikambu filed 23.04.21, Exhibit “D2”) denying their involvement, I will dismiss the claim against them.

10.	I find the following facts to be proven by the Plaintiff on the balance of probability.

11.	In March 2017, The Plaintiff Susan Paulus through her elder sister, Rachael Paulus, who is the First Defendant, bought her and her daughter tickets, and they flew to Port Moresby. They lived peacefully for some time. During those times she was operating a small informal market selling food. In January 2018, Susan Paulus decided to enrol her daughter Salome Paulus at Ted Diro Primary School, as she was 9 years old by then.

12.	Soon after enrolling her daughter in February 2018, she received a call from the police on 14 February 2018 to go to Boroko Police. At the station the First Defendant gave her two tickets for return to Wewak and K500 cash to take with her. She refused the ticket and the money as by now she has settled in well in Port Moresby and her daughter was at school. In addition to this, she had given away all her belongings in Wewak, and had nothing to return to.

13.	On 16 February 2018 the Police came to their house and arrested Susan Paulus and her daughter. Her brother Malisa Paulus felt sorry for her daughter and volunteered to spend the night in prison for Susan Paulus and her daughter Salome Paulus. He was released later that night after Susan Paulus paid K300 bail.

14.	Susan Paulus and her daughter were than told to leave the house and they slept outside before their neighbours sympathised with them and accommodated them.

15.	On 3 May 2018, Susan Paulus was arrested at her market area by the Third Defendant. They than went to Ted Diro Primary School and forcefully removed Salome Paulus from class. The Third Defendant than took them to the airport and with the assistance of the Second and Sixth defendants forced them to board the plane to Wewak. When she refused to board the flight, she was assaulted by the Third Defendant, and sworn at. She was then detained at the 7 Mile Cop Shop for eight hours with her young daughter. The Plaintiff was then charged under the Summary Offences Act for damaging property and transferred to Boroko Police Station and spent the night there. Her brother then came and took her daughter away. She was asked to pay money to be released but she refused. The next day she went to the District Court to face her charge and was released soon after, when the charges were struck out by the District Court magistrate.

16.	She was then medically examined on 16 May 2018 at the Port Moresby General Hospital. The medical report is annexed as “D” to the affidavit of Susan Paulus filed 22.04.21 (Exhibit “P1”). There were no permanent injuries only pain around her neck area and thighs.

17.	The first cause of action is in relation to negligence. The Second, Third and Sixth Defendants as members of the Police, owed a duty of care to the Plaintiffs to observe the law when they attended to the Plaintiffs. The relevant law is under s 3 of the Arrest Act, Chapter 339:

3.	Arrest without warrant by a policeman.
A policeman may, without warrant, arrest a person whom he believes on reasonable grounds—
(a)	is about to commit; or
(b)	is committing; or
(c)	has committed,
an offence.

18.	When the two Plaintiffs were arrested by the Third Defendant, there was no evidence that she was about to commit a crime, is committing a crime or has committed a crime. No evidence has been tendered by the First Defendant as to the nature of the complaint leading to her arrest by the Third Defendant on 3 May 2018. The Third Defendant therefore breached this duty owed to the Plaintiffs to observe the Arrest Act.

19.	The second cause of action relates to false imprisonment. In Kofowei v Siviri [1983] PNGLR 449, the National Court held that holding a detainee in breach of the Arrest Act amounts to false imprisonment. I adopt this approach in this case. The relevant provision of the Arrest Act is s 18, which was also considered in Kofowei. Section 18 states:

18.	Duties of officer-in-charge of station.

(1)	Where a person has been arrested and taken to a police station, the officer-in-charge of the police station shall—
(a)	immediately release the person if he considers that—
(i)	the person arrested did not commit the offence for which he was arrested or any other offence and there is no other reason to justify his detention under this Act or any other law; or
(ii)	there are good reasons why the arrested person should not be proceeded against for an offence; or
(iii)	proceedings can be effectively taken by way of summons against the arrested person…  (Emphasis added)

20.	Section 1(1)(a) of the Arrest Act is clear that a person must be released immediately if the arresting officer considers that the person arrested did not commit the offence and there is no lawful justification to have them detained. The Arrest Act does not define what immediately means.  The ordinary English definition of “immediately,” states that it is an adverb “at once; instantly,” or “without any intervening time or space.” (Dictionary.com)

21.	For the Defendants to detain the Plaintiffs for more than eight hours before charging her considered in light of the fact that Susan Paulus was only arrested for the purposes of forcing her and her daughter to board a plane, is an arrest contrary to s 1(1)(a) of the Arrest Act and amounts to breach of that provision. The need for observance of this provision was made even more necessary because Susan Paulus was with her daughter Salome Paulus, who was eight years old. It is reasonable to infer that the charge for destruction of property was a belated attempt to justify the Plaintiff’s detention, because the Defendants were hoping she would recant and agree with them to board the flight. When she maintained her position to refuse to leave Port Moresby, to justify her detention, drummed up charges were laid against her, which was why they were later dismissed by the District Court. Adopting the approach of Kofowei, I find that the Plaintiffs were falsely imprisoned.

22.	The third claim is for malicious prosecution. I adopt the National Court’s approach in Kapi v Kambang Holdings Ltd (2011) N4451. The following elements of the tort of malicious prosecution was outline din that case which I adopt for present purposes:

“(1) The elements of the tort of malicious prosecution are that (a) the defendant is responsible for institution of proceedings against the plaintiff; (b) the defendant instituted the proceedings without reasonable and probable cause; (c) the defendant was motivated by malice or some other improper purpose; and (d) the criminal proceedings were resolved in favour of the plaintiff.”

23.	The Defendants submits that all the elements of the tort of malicious prosecution have been satisfied except that there was no malice or improper purpose in the prosecution of the Plaintiff Susan Paulus. As I consider the facts of this case, the initial arrest was done without any evidence of commission of a crime or suspicion of commission of an offence. The prosecution was a belated attempt as I found, to justify the more than eight hours of detention of the Plaintiffs. In my respectful view the Plaintiffs has demonstrated on the balance of probability that Susan Paulus prosecution was malicious.

24.	The next claim is for assault. I accept that she suffered some form of assault from the Defendants. But I am not able to determine who assaulted her from the evidence. I also cannot determine from the evidence, who swore at her, by telling her to eat her mother’s vagina. On the basis of this finding, I dismiss the claim for assault.

25.	The next claim of the Plaintiffs is that following provisions of the Constitution were breached – ss 36, 37, 41(1), 42 and 52.

26.	In relation to s 36, from the evidence before the court, she was held against her will for more than eight hours, it is inferred, so as to punish her and her daughter into submission so that they can agree to board the flight to Wewak. I find that this is treatment contrary to her rights under s 36 of the Constitution, and this right was breached by the second, third, and sixth Defendants.

27.	For allegations of breach of s 37 of the Constitution, I accept the Defendants submissions that it is necessary to highlight which provision of s 37 was violated as it has 22 sub-sections. In a case claiming multiple causes of action, to be fair to the Defendants, specific provisions must be pleaded. I therefore dismiss the claim under s 37.

28.	The Plaintiffs also allege that their rights under s 41(1) was breached. I adopt my reasoning for breach of s 36 of the Constitution and find that the Plaintiffs rights were breached. I make special mention of the Plaintiff Salome Paulus. Due to her young age, the way the Police went about to get her out of school was not justifiable.

29.	I consider s 42 of the Constitution next. Section 42 provides the circumstances upon which a person’s liberty may be curtailed (In the Matter of an Application by Benetius Gehasa (2005) N2817). They are: 

•	in consequence of his unfitness to plead to a criminal charge; or
•	in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty,
•	in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or
•	by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law; or
•	upon reasonable suspicion of his having committed, or being about to commit, an offence; or
•	for the purpose of bringing him before a court in execution of the order of a court; or
•	 for the purpose of preventing the introduction or spread of a disease or suspected disease, whether of humans, animals or plants, or for normal purposes of quarantine; or
•	for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes; or
•	in the case of a person who is, or is reasonably suspected of being of unsound mind, or addicted to drugs or alcohol, or a vagrant, for the purposes of—his care or treatment or the protection of the community, under an order of a court; or
•	in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare under the order of a court or with the consent of his guardian.

30.	From the facts that I have found, I do not see any of the above circumstances present for the Defendants to deny the Plaintiffs of their right to liberty under s 42 of the Constitution. This is coupled with the fact that I have found that the Plaintiffs were falsely imprisoned, and it would naturally follow that her liberty was denied without lawful basis. I therefore find that her rights under s 42 of the Constitution was breached.

31.	The final allegation relating to the breach of human rights arises from breach of her right to freedom of movement. Section 52 states:

52. Right to freedom of movement.

(1) Subject to Subsection (3), no citizen may be deprived of the right to move freely throughout the country, to reside in any part of the country and to enter and leave the country, except in consequence of a law that provides for deprivation of personal liberty in accordance with Section 42 (liberty of the person).
(2) No citizen shall be expelled or deported from the country except by virtue of an order of a court made under a law in respect of the extradition of offenders, or alleged offenders, against the law of some other place.
(3) A law that complies with Section 38 (general qualifications on qualified rights) may regulate or restrict the exercise of the right referred to in Subsection (1), and in particular may regulate or restrict the freedom of movement of persons convicted of offences and of members of a disciplined force.

32.	This section simply means that every person has a right to move freely throughput the country, to reside in any part of the country, and to enter and leave the country. The only time that right can be limited is for the reasons set out in s 42 of the Constitution. The Supreme Court in SCR No 1 of 1986; Re Vagrancy Act (Ch 268) [1988-89] PNGLR 1, when commenting on the effects of the Vagrancy Act, as to whether it offended s 52 of the Constitution made this comment (Barnett J):

The effect of this provision would be for instance, that a respected, but unemployed Kerema man who is a second or even third generation resident in (say) the Papuan settlement in Lae could be excluded from Lae, and forced to leave his house and family, if there is elsewhere, an area of customary land where he or his wife have customary gardening rights. This is not a fanciful, isolated example. Section 3 exposes very many long term town dwellers to such exclusion orders. It applies not only to so-called squatter settlements but also to many traditional villages which are gazetted as being within town boundaries.

33.	From the facts as I have found them, there was no grounds under s 42 of the Constitution for the liberty of the Plaintiffs to be restricted. This would mean that when they were arrested to be sent back to their home province, amounts to not only breach of s 42 of the Constitution, but also s 52 of the Constitution. The comments from Barnett J are apposite to the circumstances of this case.

34.	When one interprets the facts of this case in the light of the founding ideals of our country, this was a woman who basically wanted to fulfil the Constitutional vision of the country to have an equal opportunity to take part in the political, economic, social, religious and cultural life of the country for herself and her daughter under National Goal 2 of the Constitution. She wanted to be economically independent and economically self-reliant. She should not be denied that opportunity by a State who is called to implement the National Goals and Directive Principles under s 25(2) of the Constitution.

35.	In my view the Plaintiff has adequately pleaded that the state should be vicariously liable for the actions of her servants and agents and they committed the tortious acts and breaches of the Plaintiffs rights in the course of employment and I hold the State vicariously liable for the actions of the second, third and sixth defendants. I dismiss the claim against the first defendant as although she made the complaint, the second, third and sixth defendants knew well that there was no lawful basis for them to act on this complaint.

Orders

36.	Considering my findings on the facts and the law, I make the following orders:

1.	The Plaintiffs have established a cause of action against the second, third, sixth and seventh defendants for the following:

•	Negligence;
•	False Imprisonment;
•	Malicious Prosecution; and
•	Violations of ss 36, 41(1), 42 and 52 of the Constitution.

2.	The Seventh Defendant is vicariously liable for the actions of the Second, Third and Sixth defendants, and shall pay the Plaintiffs reasonable damages and compensation under s 58(2) of the Constitution.

3.	Matter is adjourned to the next directions hearing for purposes of preparation for trial on assessment of damages.

4.	Costs up until today shall be paid by the Seventh Defendant on a party/party basis, to be taxed, if not agreed.

5.	Time is abridged.

Orders accordingly on liability.

Public Solicitor:  Lawyers for the Plaintiffs
Solicitor-General:  Lawyers for the Defendants