SC2729

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 92 OF 2024

ROGER BAI NIMBITUO
First Appellant

RONALD WAFIEHE
Second Appellant

-V-

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent 

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

WAIGANI: KARIKO J, KAUMI J, ELIAKIM J
      27 MARCH, 1 MAY 2025

APPEAL – assessment of damages for breach of human rights, ss 37 & 41, Constitution – appellants kept in custody 396 days after their due date of release – exercise of discretion – relevant principles – whether trial judge erred in assessing damages – whether trial judge erred in not awarding costs

The appellants were unlawfully detained in custody for 396 days after their due date of release from serving sentences after conviction by the National Court of various criminal offences. They claimed damages for breach of human rights which was upheld by the trial judge. The appellants allege the trail judge erred in assessing damages and not awarding costs in their favour. 

Held

1.	In an appeal against a trial judge's exercise of direction, the onus is on the appellant to show that the exercise of discretion is clearly wrong, or an identifiable error has occurred in the exercise of discretion. Alternatively, the judgment or order may be set aside where there is no identifiable error, but it is "unreasonable or plainly unjust" such that an error can be inferred. Heni Totona and Ors v Alex Tongia and Ors (2012) SC1182 referred to.
 
2.	The appellants failed to show the errors alleged in the grounds of appeal regarding the trial judge's exercise of discretion in assessing the amounts of general damages and exemplary damages, and the order as to costs. 

3.	Appeal dismissed. 

Cases cited
Boroko Motors Ltd v Meridian Motors Ltd (2020) SC2028
Heni Totona and Ors v Alex Tongia and Ors (2012) SC1182  
Kogora v Kawi (2018) N7137
Nimbituo v Commissioner of the Correctional Service (2024) N10875
Wati v Gavera (2013) N5363 
Selan v Independence State of Papua New Guinea (2012) N4938

Counsel
J Gene for the appellants
A Kajoka for the respondent

1.	BY THE COURT: This is an appeal from the decision of the National Court at Waigani given on 4 July 2024 in proceedings WS (HR) No. 7 of 2023 whereby the trial judge awarded damages in favour of the appellants for breaches of their human rights; ss 37 and 42 of the Constitution. See Nimbituo v Commissioner of the Correctional Service (2024) N10875 (the Decision)

BACKGROUND 

2.	The appellants were sentenced on 5 March 2021 to imprisonment at the Boman Correctional Institution after being convicted by the National Court of various criminal offences. 

3.	The CIS calculated their due date of release (DDR) to be 4 July 2024.

4.	The appellants disputed the calculation by filing proceedings WS (HR) No. 7 of 2023 on 27 July 2023 in the National Court which affirmed the correct DDR was 5 November 2020. This meant the appellants had been unlawfully detained in custody since that date. 

5.	The appellants were released 396 days after the DDR.

6.	Liability was established against the defendants for breaches of the appellants’ human rights under the Constitution - s 37 (Protection of the law) and s 42 (Liberty of the person), and hearing on damages followed. 

7.	The appellants sought general damages; exemplary damages; interest; and costs.

8.	The trial judge awarded to each appellant:

•	general damages of K39,600 calculated at K100 per day of the 396 days of unlawful detention,
•	exemplary damages at a fixed sum of K5,000,
•	interest of K838.48.

9.	His Honour declined to award costs.   

10.	Aggrieved by the Decision, the appellants filed this appeal.  

THE APPEAL

11.	The grounds of appeal read:

i.	The trial Judge erred in mixed fact and law when his Honour relied on the case of Wati v Gavera [2013] PGNC 182; N5363, when the most appropriate case law to rely on was the case of Kogora v Kawi (2018) N7137.

ii.	The trial Judge erred in mix fact and law when his Honour did not take into account the number of human rights breached and his Honour further failed to multiply those number of human rights breaches; i.e., ss. 37 and 42, with the sum of damages per day. 

iii.	The trial Judge erred in mixed fact and law when his Honour gave weight to extraneous and irrelevant considerations when assessing the sum of damages per day, such as the following: 

a)	“It would look quite ridiculous to award persons who were convicted prisoners a windfall gain of millions of Kina for being detained in custody for a little over a year beyond their due date of release.” 

b)	“It is not appropriate to assess exemplary damages using a daily rate. Instead, it is better to award a fixed sum, reflecting the evidence that the period of unlawful detention resulted from an administrative oversight and not from any deliberate acts or omissions by the defendants or any of their officers or employees.” 

iv.	The trial Judge erred in mixed fact and law when his Honour held that “that the period of unlawful detention resulted from an administrative oversight and not from any deliberate acts or omissions by the defendants or any of their officers or employees.”, when case laws on the proper calculation of prisoners due date of release were made in around 2013 such as Complaint by John Irekau (2013) N4958; Complaint by Michael Tambeng (2013) N4959 and Application by Samalan Peter (2014) N5631, and as such the Defendant’s failure to not apply the law as it was and accordingly properly calculate the Plaintiff’s due date of release is a deliberate act. 

v.	The trial Judge erred in mixed fact and law by not awarding a sum of damages per day for exemplary damages and instead awarded a global sum of K5, 000 each. 

vi.	 The trial judge erred in mixed fact and law by not awarding costs in favour of the Plaintiffs who were represented by the Public Solicitor, in a fixed sum as sought.

APPEAL AGAINST EXERCISE OF DISCRETION

12.	Grounds of appeal i, ii, and iii a) relate to the award of general damages; Grounds iii b), iv and v, the award of exemplary damages; and Ground vi, the order as to costs.   

13.	All the orders involved exercise of discretion by the trial judge.

14.	The principles on an appeal against exercise of discretion are well settled. The appellants correctly refer to them citing Boroko Motors Ltd v Meridian Motors Ltd (2020) SC2028.  The principles were concisely expressed in Heni Totona and Ors v Alex Tongia and Ors (2012) SC1182 at [2] as follows: 

Where an appeal is against a primary judge's exercise of discretion, the onus is on an appellant to show that the exercise of discretion is clearly wrong or an identifiable error has occurred in the exercise of discretion. Alternatively, the judgment or order may be set aside where there is no identifiable error, but it is "unreasonable or plainly unjust" and such that an error can be inferred. see Curtain Bros (PNG) Ltd v UPNG (2005) SC788 which was subsequently endorsed and applied in The State v Sam Akoita & Others (2009) SC1016.

GENERAL DAMAGES

15.	The appellants allege the trial judge erred in fact and law by adopting the approach to assessing general damages applied in Wati v Gavera (2013) N5363 rather than Kogora v Kawi (2018) N7137 regarding the amount payable for each day of unlawful detention.

16.	The trial judge explained at [3]-[6] of the Decision:

3.	Counsel for the plaintiffs, Mr Gene, relied on the case of Kogora v Kawi (2018) N7137, in which the plaintiff was awarded K6,000.00 damages for each of five days of unlawful detention. However, I was the trial judge in that case and the facts are very different from the present case as the plaintiff in Kogora was detained in deplorable conditions and he was an officer of the National Court who incurred multiple human rights breaches at a place in which he was seen to be an outsider. In the present case, there is no evidence that the conditions of detention were poor or that the plaintiffs were subject to harassment and intimidation and fear in the same way as the plaintiff in Kogora.

4. 	I think a far more relevant precedent is Wati v Gavera (2013) N5362, in which the plaintiff was arrested and charged with wilful murder and detained in custody for a period of seven years, seven months, three weeks, without being brought to trial, before being discharged by the National Court upon presentation of a nolle prosequi. The plaintiff commenced proceedings claiming damages for breach of human rights. Liability against the defendants was established by default judgment. He was awarded general damages for breach of human rights calculated at a rate of K50.00 for each day of unlawful detention. The amount awarded was 2,786 days x K50.00 per day = K139,300.00.

5. 	I uphold Mr Gene’s submission that it is appropriate to assess general damages using a daily rate, but I consider that K10,000.00 per day is vastly excessive. It is not in the interests of justice to award such a sum. It would look quite ridiculous to award persons who were convicted prisoners a windfall gain of millions of Kina for being detained in custody for a little over a year beyond their due date of release.

6. 	Using Wati as the best precedent and bearing in mind that it was decided ten years ago, the appropriate daily rate to use in the present case is K100.00. I award to each plaintiff the amount of K100.00 for each day of unlawful detention. Thus K100.00 per day x 396 days of unlawful detention = K39,600.00.
	(Emphasis added)

17.	His Honour reasoned why and how he assessed the sum of general damages that he awarded. With respect, the approach adopted was open to the trial judge as the precedent cases Wati v Gavera (supra) and Kogora v Kawi (supra) were both cases his Honour had decided and whose facts he was familiar with. His Honour distinguished the cases on the factual differences. 

18.	As to the contention that the trial judge ought to have multiplied the daily rate of general damages by the number of breaches of human rights, the appellants rely on this passage at [6] in Kogora v Kawi (supra): 

In assessing damages for breach of human rights involving unlawful or unreasonable detention of a person over a number of days, it is appropriate to assess damages daily, as each day that a person is unlawfully or unreasonably detained is a significant event, warranting a discrete award of damages. In fixing an appropriate daily amount of damages, it is relevant to consider precedent cases, the number of human rights breaches that have been identified and the nature and extent of the breaches, having regard to all the circumstances of the case.
(Emphasis added)

19.	We do not read the remarks to state that when applying a daily rate of damages, the court shall multiply the amount by the number of human rights breaches. Rather, the statement propositions that the number of human rights breaches (and their nature and extent) are matters to be considered in deciding the appropriate daily rate. There may be cases where it is appropriate to multiply the daily rate by the number of breaches depending on the particular facts and circumstances of the case, including the nature of the breaches. There may be cases involving different breaches constituted by different acts or omissions. In the present case, there were two human rights breaches, but they resulted from the one act or omission – the appellants were unlawfully detained after their DDR.

20.	As to the argument that the trial judge was wrong to consider extraneous and irrelevant matters, we note that this attack is directed at the following remarks by his Honour in [7] of the Decision:

It would look quite ridiculous to award persons who were convicted prisoners a windfall gain of millions of Kina for being detained in custody for a little over a year beyond their due date of release.

21.	The purpose of general damages for breach of human rights is to fairly and reasonably compensate the claimant for suffering and hardship caused by the breaches. We consider the comments by the trial judge to be consistent with this principle: compensation must be fair and reasonable and not excessive. 

EXEMPLARY DAMAGES

22.	The appellants submit that the trial Judge should have awarded exemplary damages at a daily rate as his Honour did in Selan v Independence State of Papua New Guinea (2012) N4938 rather than a fixed sum. In that case, the plaintiff who was remanded for a criminal offence was unlawfully detained for one week in a cell, in a confined and overcrowded space in conditions that were inhuman.  The factual situation was therefore very different to the present case.

23.	In this case, the trial judge reasoned at [7] of the Decision:

It is not appropriate to assess exemplary damages using a daily rate. Instead, it is better to award a fixed sum, reflecting the evidence that the period of unlawful detention resulted from an administrative oversight and not from any deliberate acts or omissions by the defendants or any of their officers or employees. I award each plaintiff K5,000.00 for exemplary damages.
(Emphasis added)

24.	It is clear the trial judge based his decision on the facts of this case. The appellants did not refer to this court any evidence to contradict his Honour’s finding to show the alleged error by his Honour. 

COSTS

25.	It is trite law that the award of costs is discretionary. It is argued on behalf of the appellants that the Public Solicitor is entitled to recover costs as any other law firm, and the trial judge erred in law by failing to give reasons for his refusal to award costs in favour of the appellants.  

26.	We accept that the Public Solicitor is entitled to recover costs, but we do not agree that no reasons were given for the order on costs. 

27.	The trial judge did not consider it appropriate to award costs to the appellants as they were represented by the Public Solicitor and the principal defendant was the State. This is the position usually taken by the courts in civil cases where the plaintiff is represented by the Public Solicitor in proceedings against the State. The reason for this is that legal aid provided by the Public Solicitor is usually free of charge (as was this case), and cases are handled by lawyers who are public servants paid by the State working in offices funded by the State. 

28.	We find no basis to interfere with the trial judge’s order on costs.
 
CONCLUSION

29.	We briefly note that the appellants repeated throughout their submissions that the trial judge failed to give reasons for his decision on the various orders appealed against. We have not specifically addressed this point because it was not pleaded as a ground of appeal. In any case, we are not persuaded by the submission. The trial judge gave adequate reasons for the awards and orders he made.  

30.	For the foregoing reasons, we find that the appellants have failed to show the errors alleged against the trial judge in the grounds of appeal, and the appeal must therefore be dismissed.  
________________________________________________________________
 Lawyer for the appellants: Public Solicitor
 Lawyer for the respondents: Solicitor General