N10771

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 564 OF 2020

BETWEEN:
JOHN SAMBIE in his capacity as former President for Inland Baining Local Level Government
Plaintiff

AND:
THE MINISTER FOR INTER-GOVERNMENT RELATIONS
First Defendant

AND:
WILSON MATAVA in his capacity as Administrator for East New Britain Provincial Government
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Kokopo: Manuhu, J.
2023:28th March
2024: 3rd May

ASSESSMENT OF DAMAGES – President of Local-level Government prevented from resuming duties after losing in 2017 National General Elections -Loss of salaries and entitlements – Shame, Embarrassment, Anxiety and Pain – Exemplary damages – Continuous severe breach of Constitutional Rights – Section 12 of the Claims By and Against the State Act 1996  

Cases Cited:
OS NO 646 of 2017 Daki Mao & Judas Nalau v Sheila Haro Acting Provincial Administrator & Morobe Provincial Government (Unreported)
Sambi v Minister for Inter-Government Relations [2022] N9774
Mond v. Kalasim [2004] PGNC 130
Kakipa v Nikilli [2002] N5689
Covec Pty Ltd v Kama [2020] SC1912

Counsel:
J. Marubu, for the Plaintiff
E. Takaboy, for the First and Third Defendant
N. Yabon, for the Second Defendant (No appearance)

3rd May 2024

1.	MANUHU, J:  The plaintiff claims damages in the sum of more than Thirty Million Kina against the Defendants after he was wrongfully prevented by the defendants from doing so. Liability was determined in favour of the Plaintiff on 22nd July 2023: Sambi v Minister for Inter-Government Relations [2022] N9774. The matter came before me again for hearing on assessment of damages on 28 March 2023 in Kokopo. 
Loss of Salaries and Entitlements
2.	It isn’t disputed that after the proceeding was instituted, the claim for loss of salaries and other related entitlements was calculated, processed and paid to the Plaintiff. An amount of K220,059.31 was paid as backdated salaries and entitlements for the balance of his term as President. I am so satisfied that the payment settles the claim for lost salaries and entitlements.  
Shame, Embarrassment, Anxiety and Pain
3.	Shame, embarrassment, anxiety and pain are peculiarly within the knowledge of the person complaining.  He may be truthful or he may be exaggerating. Ideally, evidence from someone close to him or some medical evidence would be useful. If there is evidence that he suffered hypertension, for instance, it would establish the claim beyond mere speculation and assumption. There is no such evidence in this case.
4.	I find that the Plaintiff has failed to prove the claim for damages for shame, embarrassment, anxiety and pain. 
Exemplary Damages. 
5.	The relevant considerations were discussed by Gavara-Nanu J in Kakipa v Nikilli [2002] N5689.  Among other things, the Defendants are immune from liability pursuant to Section 12 of the Claims By and Against the State Act unless it appears to the court that, regardless of the nature of the claim, there has been a breach of Constitutional Rights so severe or continuous as to warrant and award of exemplary damages: Mond v. Kalasim [2004] N2638. 
6.	In this case, after he was prevented from resuming, the Plaintiff attempted to have talks with legal officers of the Second Defendant, have an audience with the Second Defendant himself, wrote letters to these respective officers but no one of those officers responded or acknowledged his letters. 
7.	The Plaintiff produced a previous court pronouncement (OS NO 646 of 2017 Daki Mao & Judas Nalau v Sheila Haro Acting Provincial Administrator & Morobe Provincial Government (Unreported)) which declared null and void the Ministerial Circular the defendants were relying on to prevent him from resuming duties.  However, the defendants maintained their stubborn attitude, quite needlessly.  Seeing that he was not making any progress, the Plaintiff filed this proceeding. 
8.	The defendants came to their senses nearly a year after the proceeding was filed.  The claim for lost salaries and entitlements were paid. The payment is admission by the defendants that they were wrong all along.
9.	In the judgment on liability, the Court found:
“Clearly, the [Organic Law National and Local-level Government] and the [Local-level Government Act] were virtually ignored and breached by the defendants.  The procedures for dismissal were not followed.  No one is above the law in this country.  A Minister is subject to the laws of this country.  Provincial and District Administrators are subject to the laws of the country.  The defendants have a duty to uphold and apply the laws of the country in the decisions they make.  They have failed that duty.  The Minister for Inter-government Relations and the Administrator for East New Britain effectively unlawfully dismissed the plaintiff from office when he was prevented from resuming his office as President.  The plaintiff has been victimised as a direct consequence of the unconstitutional and unlawful actions of the defendants.  Therefore, the defendants are each and severally liable for their wrongful dismissal of the plaintiff when they prevented him from entering his office.”
10.	The persons who orchestrated the Plaintiff’s lockout were very senior bureaucrats who held prestigious offices. It demands a high level of confidence and respect in the First and Second Defendants attitude in conducting their duties and responsibilities safely and within the confines of the law. The lockout was contemptuous particularly when the defendants were aware of a previous court pronouncement on point.                    
11.	The people of inland Baining LLG would be entitled to be appalled by how their mandated leader was forced out of his office. They became victims of an unjustified displacement of their elected leader.  The lockout interfered with the operations of the Local-level government.  Service delivery to the people would have been affected. 
12.	For the foregoing reasons, I am satisfied that the Plaintiff has demonstrated that there was a continuous severe breach of his Constitutional Rights that justifies an award for exemplary damages.
13.	How much should it be? The Plaintiff is asking for Thirty Million Kina. In my view, Thirty Million Kina is excessive. In Covec Pty Ltd v Kama [2020] SC 1912, an award of One Million Kina was confirmed by the Supreme Court where the appellant trespassed on traditional land, erected a crushing plant and extracted gravels, sand and stone for its crushing plant.  I am of the view that the breach in this case is much more serious.
14.	In Mond v Kalasim [2004] N2638, Two and a Half Million Kina was awarded in exemplary damages in a case involving multiple victims of a police raid. Those were the days when police raids were common occurrences in the country.   
15.	Guided by the said cases, I find that the circumstances and extent of breach in this case warrants an award of One Million Kina.  It would hopefully serve as deterrence to bureaucrats and government officers (including responsible government lawyers) to dutifully uphold the Constitution and laws of the country including judicial pronouncements.  Far too many disputes end up in court because of constant failure within the bureaucracy to reason and make decisions that would expeditiously resolve administrative disputes. 
16.	Accordingly, an award of One Million Kina in exemplary damages is awarded to the Plaintiff with eight (8) per cent interests effective from date of this judgment. Cost is also awarded to the Plaintiff which, if not agreed, shall be taxed. 
Orders accordingly.
________________________________________________________________
Marubu Lawyers: Lawyer for the Plaintiff			
Solicitor General: Lawyer for the First & Third Defendants
Inhouse Lawyers: Lawyer for the Second Defendant