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Supreme Court of Vanuatu |
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IN
THE SUPREME COURT
OF
THE REPUBLIC OF
VANUATU
(Civil
Jurisdiction)
CIVIL CASE No. 112 of 2003
BETWEEN:
JESSE
TEMAR
First Claimant
AND:
NOEL
AMKORI
Second Claimant
AND:
NADINE
ALATOA
Third Claimant
AND:
OBED
NALAU
Fourth Claimant
AND:
PHILIP
NATATO
Fifth Claimant
AND:
ANATOL
KOULON
Sixth Claimant
AND:
THE
REPUBLIC OF
VANUATU
Defendant
Coram: LunabeK Vincent
Chief Justice
Counsels: Mr.
Daniel Yawha for the claimants
Mr.
Dudley Aru the Solicitor General and Mr. Frederick Gilu for the
defendant
JUDGMENT
INTRODUCTION
This
is a claim filed by the six (6) claimants against the Republic of Vanuatu as the
defendant. The claimants claim damages for false
imprisonment, malicious
prosecution. Further five (5) claimants claim also damages for the assault save
the third defendant, Nadine
Alatoa.
ISSUE
The
issue before the Court is whether the Government should be held liable for the
action of the Police Officers who falsely arrested
and wrongfully imprisoned the
claimants on 4 August
2004.
CASE
FOR CLAIMANTS
The case of the
claimants is that the Government of the Republic of Vanuatu is the employer of
all the Police Officers who took part
in the “Operation Procedure
2002”. In that Operation, Police Officers unlawfully arrested each and all
the claimants
at their homes, brought them to Police Station and unlawfully kept
them in prison and charged them for seditious conspiracy, contrary
to Section 64
of the Penal Cod Act [CAP. 135]. The claimants were then discharged by the
dismissal by the Court of the charge laid
against each of them and they were
then freed. As such, the claimants claim that the Government of the Republic of
Vanuatu is liable
for the conduct of Police Officers who were found guilty of
mutiny and those who participated in the mutiny but were found not guilty
and
those who were never charged of the said mutiny nor
disciplined.
CASE
FOR DEFENDANT
The case of the
defendant, the Republic of Vanuatu is that the Government of the Republic is not
liable for the actions of the Police
Offices who falsely arrested and wrongly
imprisoned the claimants on 4 August 2002 as the Police Officers were acting
without authority
and outside the scope of their
employment.
FACTS
AS AGREED AND EVIDENCE OF
CLAIMANTS
The only dispute in
relation to the facts in this matter relates to whether or not any of the
claimants were assaulted. The other
facts are agreed as follows:
1. Early on the morning of 4 August 2002, officers of the Vanuatu Police Force arrested the claimants and nine others, including the then Commissioner of Police, Mael APisa, without warrants.
2. The claimants and the others arrested were taken to Port-Vila Police Station where they were held in a cell taken to the Magistrate Court at around 10.30PM that evening.
3. The cell was small and over crowded.
4. The claimants were charged with Seditious Conspiracy contrary to Section 64 of the Penal Code Act [CAP. 135] and were released on bail at 11.25PM.
5. The criminal charges were dismissed when the Public Prosecutor refused to give her consent to the prosecution.
6. The arrests were made, and the charges brought for an improper purpose in that they were brought as part of an unlawful course of action by Senior Police Officers protesting at the appointment of the new Police Commissioner Mael Apisai.
7. The Police Officers involved in the arrests and detention of the claimants were Ron Tema, Peter Iauko, Alfred Kokoni, Malachi George, Samson Kalo, Samsan Leto, Jena Yves Kai, George Twoomey, Erick Pakoa, Holi Simon, Api Jack Marikempo and Paul Willie Rueben.
8. Erik Pakoa, Holi Simon, Api Jack Marikempo and Paul Willie Rueben directed the other officers involved in the arrest to carry them out. On 5th December 2002, the Supreme Court of Vanuatu convicted Holi Simon, APi Jack Marikempo, Paul Willie Rueben and Erick Pakoa of inciting mutiny, kidnapping and false imprisonment.
9. On 9th May, 2003 the Court of Appeal of Vanuatu upheld the convictions and sentenced each of the above named officers to two years imprisonment.
10. Both the Supreme Court and Court of Appeal were satisfied that Erick Pakoa, Holi Simon, Api Jack Marikempo and Paul Willie Rueben officers incited and lead the mutiny that resulted in the unlawful arrest and detention of the claimants. All other officers involved were acting under their direction and control.
Jesse
Temar gave evidence to the effect that the Majority of the Police Officers were
involved in the arrest and detention of the
Claimants. Most of them are still
working now for the defendant.
He
stated also that the Operation Procedure 2002 was authorized by Api Jack
Marikembo as the Deputy Police Commissioner for Operation.
The Police Officers
who were involved in this Operation used government vehicles and wore Police
Uniforms during the operation.
He
finally said that the Operation Procedure 2002 was not authorized by the
Commissioner of Police, Mael
Apisai.
THE
LAW
The following are the relevant
provisions of the Police Act [CAP. 105] and the Penal Code Act [CAP 135] to the
issue before the Court:-
▪ Sections 2; 3; 4(1), (2), (3); 6(1), (2); 7(1), (2), (3), (4); 35(1), (3); 46 are the relevant provisions of the Police Act. Section 60 is the relevant provision of the Penal Code Act.
The
above sections of the Police Act provide as follows:
“2. There is hereby established a police force called the Vanuatu Police Force.”
“3. “The Force shall consist of the Commissioner and such senior and subordinate officers as may from time to time be approved by the Minister.”
“4. (1) It shall be an essential duty of the Force to maintain an unceasing vigilance for the prevention and suppression of crime.
(2) The Force shall be employed throughout Vanuatu and its territorial waters for-
(a) the preservation of peace and the maintenance of order;
(b) the protection of life and property;
(c) the enforcement of laws;
(d) the prevention and detection of offences and the production of offenders before the Courts; and
(e) such other duties as may be expressly provided for by law.
(3) Members of the Force shall be entitled for the performance of their duties to carry arms which shall only be used on the instructions of the Commissioner or of a senior officer authorized by him and in accordance with the general directions of the Minister.”
“6. (1) The Commissioner shall have the command, superintendence and direction of the Force and, subject to the provisions of this Act and to the general directions of the Minister may-
(a) make such appointments, promotions and reductions in rank in respect of all subordinate officers as he may consider fit; and
(b) make Force Orders for the general government of members in relation to their enlistment, discharge, training; arms; clothing; equipment and other appointments and particular services as well as their distribution and inspection and other such orders as he may deem expedient for preventing neglect and for promoting the efficiency and discipline of all members.
(2) Any act or thing which may be done, ordered or performed by the Commissioner may with the authority of the Commissioner, be done, ordered or performed by a senior officer.” [Emphasis added]
“7. (1) The command and control of any particular unit of the Force in any place shall be vested in such member as may be appoint and by the commissioner to be in charge thereof. Any member so appointed shall be an officer in charge of police for the purposes of this Act.
(2) An officer in charge of police shall be subordinate to and carry out the orders of the Commissioner in all matters connected with-
(a) the discharge of the general functions of the Force as provided by Section 4; and
(b) the discipline, training, promotion and welfare of all members under his command.
(3) Every officer in charge of police shall be responsible for all public stores and moneys issued and delivered for the use of the unit of police under his command and for any other thing, money or valuable security coming into his possession by reason of his appointment and shall account for the same to the Commissioner or to any public officer authorized for that purpose.
(4) Every officer in charge of police shall keep such books and records and shall render such returns as the Commissioner may from time to time direct.”
“35. (1) Every member shall exercise such powers and perform such duties as are by law conferred or imposed upon him, and shall obey all lawful directions in respect of the execution of his office which he may from time to time receive from his superiors in the Force.
(2) Every member shall be considered to be on duty at all times and may at any time be detailed for duty in any part of Vanuatu.
(3) It shall be the duty of every member to promptly obey and execute all orders and warrants lawfully issued to him by any competent authority, to collect and communicate intelligence affecting the public peace, to prevent the commission of offences and public nuisances, to detect and bring offenders to justice and to apprehend all persons that he is legally authorized to apprehend and for whose apprehension sufficient ground exists.”
[Emphasis added]
“46. Any member who-
(a) takes part in any mutiny or intended mutiny amongst the Force; or
(b) knowing of any mutiny amongst the Force does not use his utmost endeavours to suppress such mutiny; or
(c) knowing of any intended mutiny amongst the Force does not without delay give information thereof to his superior officer;
shall be guilty of an offence and liable on conviction to a term of imprisonment not exceeding 5 years.”
o Section 60 of the Penal Code Act [CAP. 135] provides as follows:-
“No person owing allegiance to the Republic of Vanuatu shall, within or outside the Republic, for any traitorous or mutinous purpose-
(a) endeavour at any time to seduce any person serving in the forces of the Republic or any member of the police force from his duty and allegiance to the Republic;
(b) incite any such person to commit an act of mutiny or an act of treason.
Penalty: Imprisonment for life.”
2. The following cases are submitted and referred to the Court on the vicarious liability issue.
▪ In Bartonshell Coal -v- McGuire (1885) Macq 300 at 306 it was held that:
If a servant commits a tort in the course of his employment, then the employer is liable regardless of whether he himself has committed a tort, ‘every act which is done by a servant in the course of his duty is regarded as done by his master’s order, and consequently is the same as if it were the master’s own act... The employer is to bear a financial responsibility for those torts committed by his servant in the course of his enterprise.
▪ The expression ‘in the course of employment’ was considered in St. Helen’s Colliery -v- Hewitson. Lord Atkinson said at p. 76-
“... the words ‘in the course of his employment’ means while the workman is doing what he is employed to do, i.e. discharging the duties to his employer imposed upon him by his contract of service. The word ‘employment’ in this connection must cover and include the things necessary and incident to employment”.
▪ The Vanuatu case of Tom Jack Usamoli -v- Hendry Nalpini and Public Service Commission, [2003] VUSC 41; Civil Case No. 25 of 2001 has applied the principle of vicarious liability in Bartonshell Coal Co as well as applying the definition of ‘in the course of employment’ in St. Helen’s Colliery. It was held in Tom Jack Usamoli that the first and second defendants were jointly and severally liable for the actions incurred by the first defendant.
▪ In Racz –v- Home Office [1994] 1 All ER 97, the plaintiff brought an action against the defendant alleging that he had suffered ill treatment by prison officers while he was a remand prisoner.
The House of Lords said whether the Home Office would be liable for the acts of the prison officers would:-
“...depend on the actions of the officers at the time of carrying the acts and seeing whether it falls within their normal duties. How it is determined is to ask whether the:
(a) Prison Officer were engaged in a misguided and unauthorized method of performance of an authorized duty, or
(b) Unauthorized acts so, unconnected with authorized duties as to be quite independent of and outside those normal duties. “
Lord Jauncey of
Tullichettle who gave the leading judgment for the House quoted with approval
Salmond and Heuston on the Law of Torts
19th
Ed (187) to the effect that:
“...if the unauthorized and wrongful act of the servant is not so connected with the authorized act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment but has gone outside it.”
THE
SUBMISSIONS
The claimants make the
following submissions:
1. The case of the claimants and the submissions of the claimants proceed in substance on the basis that the facts surrounding the arrest, the detention of the claimants started from a snap operation procedure of 4 August 2002. The snap operation procedure was issued by Api Jack Marikempo as Deputy Commissioner for operation.
2. This snap operation resulted after the appointment of Mael Apisai as the Commissioner of Police in August 2002.
3. The claimants say that Api Jack Marikempo issue the instrument of the snap operation of 4 August 2002 in his capacity as official member of the police force to authorize it.
4. It is said that the operation procedure 2002 involved majority of the police force members.
5. Majority of the Police Officers who actually arrested without warrant assaulted, and maliciously prosecuted the claimants have not been charged of Mutiny nor found guilty of Mutiny; except for Api Jack Marikempo, Holi Simon, Paul Willie Rueben, and Erick Pakoa.
6. These Police Officers are Mr. Ron Tema, Alfred Kokoni, Malachi George, Samson Kalo, Samson Leto, George Toomy, Pakoa Tarimas, Delvin Vuti, Pillar Siprian and the list goes on in Exhibit C9 of Mr. Jesse Temar's evidence.
7. It is said that these officers are still employed by the government of the Republic of Vanuatu as Police Officers and were paid by the defendant the hours of duty during the operation procedure 2002. The food and fuel consumption used for the operation procedure 2002 were also paid by the Defendant.
8. It is also said that the Government did not disciplined these officers for involving in the false arrest, assault and malicious prosecution of the Claimants.
9. It is also said that all the individual police officers and the State Prosecutor who actually arrested, assaulted, and maliciously prosecuted the claimants were acting in their various capacities and or appointments as servants and agents of the Defendant.
10. It is further said that these officers are employees of the Defendant.
11. It is therefore submitted for the claimants that the defendant is vicariously liable for the conduct of all its Police Officers who caused damage to the claimants.
12. The vicarious issue in this case is that there is sufficient evidence that there is an employment relationship between the officers who imprisoned, assaulted and maliciously prosecuted the claimants and the defendant.
13. It is submitted that the defendant as the employer has the right to control not only what work the Police officers does but the way in which that work was done. Those work and duties were empowered under Police Act, to carry out Orders and to arrest, imprison and charge anybody whom they have the reasonable believe to have committed an offence.
14. The claimants submit that the arrest, assault and malicious prosecution of the claimants was carried out during the course of the Police officers employment as:-
(a) They were acting under instructions of their superior and they say their masters authorized the wrongful act; and
(b) The Police officers who arrested the claimants were acting in the course of employment because as part of their duty they reasonably believe that the claimants committed an offence of seditious conspiracy under Police powers [CAP. 105] s. 49, s.72 (1) (2).
15. The claimants rely on the principle cited in the judgment of St Helen’s Colliery vs. Hewitson referred to above applied in the Fiji case of Fiji Gas Company vs. the Secretary for Labour (1975) 21 FLR 133 in this way:
“A case in which the interpretation of the “course of employment” was in issue is Fiji Gas Company Ltd. –v- The Secretary for Labour (1975) 21 FLR 133).
The employee was employed as the local breach manager at the employer’s branch office in Lautoka. In order to carry out his duties some form of transport was necessary. He worked from 8 a.m. to 3 p.m., Monday to Friday and was obliged to send at report to the head office at Suva as soon as possible after the end of each month. Also report to the head office at Suva as soon as possible after the end of each month. Also report to the head office at Suva as soon as possible after the end of each month. Also from time to time he was called out from home to attend to equipment. He used the employer’s can for travelling from his home 5 miles away to the Lautoka Office; for travelling to areas where he was called upon to do installation and maintenance work and for attending to problems of maintenance when he was called out form his home. There were two other vans in use, which suggests that the work in general entailed carriage and transport of this kind. He was involved in a motor accident when driving his employer’s van on the evening of Sunday 2nd September 1973. He had been in the Lautoka Office for the greater part of the day preparing the monthly report for August 1973. He elected to work on the Sunday so as to be free to do other work on the Monday. It was when he was driving home that the accident occurred.
It was held that in the normal circumstances, an employee travelling in his employer’s van to and from work is not then in the course of his employment unless he is obliged by the terms of his employment to make the journey in that vehicle. In the present case, it was in the appellants’ interests that the respondent should travel to his place of employment at home in the van to enable him to fulfil his duties efficiently. Consequently the respondent was driving the van in the course of his employment when the accident occurred.
William J: The expression “in the Course of” – his employment, was also considered in St. Helen’s Colliery –v- Hewitson (supra). Lord Atkinson said at p.76.
“... the words “in the course of his employment” means while the workman is doing what he is employed to do, i.e. discharging the duties to his employer imposed upon him by his contract of service. The word “employment” in this connection must cover and include the things necessary and incidental to the employment.”
The explanation has been approved repeatedly. It was approved by Lord Atkin, in Blee –v- L. N. E. R. [1939] AC 126 at 131, who also quoted Lord Dunedin’s words in Davidson –v- M’Robb [1918] AC 304:
“In my view ‘in the course of employment’ is a different thing from ‘during employment’. It connotes to my mind the idea that the workman or servant is doing something which is part of the service to his employer or master. No doubt it need not be actual work, but it must, I think, be work or the natural incidents, connected with the class of work”.
16. The employees in this case have wide and general powers pursuant to Police Act to arrest, detain and charge the claimants.
17. The Police Officers were clearly engaged in performing their actual duty and not the task related or incidental to it.
18. The issue to be decided also in this case is whether those officers were acing in the course of their employment when they assaulted, arrested, imprisoned, charge and prosecuted the claimants.
19. They submit they were acting in the course of their employment. The same applies to mutineers who were acting in the course of their duty.
The claimants finally rely
on the provisions of section 4 (12); 49 and 72 (1), (2), (3) and (4) of the
Police Act [CAP. 105].
The defence
submits to this effect:-
The
defendant submits in essence that it is not liable for the actions of the
mutineers as the police officers were acting without
authority and outside the
scope of their employment.
They
further say in substance that this is not the case of an otherwise lawful
operation carried out in an unlawful way such that
the Government may be liable
for the action of those involved. It was unlawfully conceived and amounted to an
offence from its very
conception.
The defence further
says that this case is an example of where the police officers have committed
such an unauthorized and wrongful
act that they were not acting within the
course of their employment. They were acting in such a way that they were guilty
of mutiny.
They rely on the case
of Racz
–v- Home Office [1994] 1 All ER
97.
APPLICATION
OF THE LAW TO THE FACTS
Applying
the law to the facts I do accept the submissions made on behalf of the defendant
and I reject the submissions adduced on
behalf of the claimants. I set out the
reasons below:-
The functions of
the Police Force are set out in Section 4 of the Police Act. Section 35 of the
Act provides for the general powers and duties of the members of the Police
Force. Section 46 provides for the
charge of
mutiny.
The Police Officers
involved in the arrests and detention of the claimants were Ron Tema, Peter
Iauko, Alfred Kokoni, Malachi George,
Samson Kalo, Samson Leto, Jean Yves Kali,
George Twoomy, Erik Pakoa, Holi Simon, Api Jack Marikempo and Paul Willie Rueben
were subsequently
convicted of mutiny for organizing the arrest, detention and
prosecution of the claimants.
The
fact that the subordinate officers were not disciplined or charges for their
part in the mutiny does not in anyway condone their
action or excuse it. Their
act were still without lawful authority and the government should not be held
liable for them.
The facts as
agreed show that Erik Pakoa, Holi Simon, Api Jack Marikempo and Paul Willie
Rueben directed the other officers involved
in the arrest to carry them out. All
other officers involved were acting under their direction and control. They were
not acting
at the direction or control of the commissioner of police and were
acting without lawful authority. Given the nature of the police
as a disciplined
force it cannot be the case that the government is liable for their acts based
on unlawful orders as in this case.
Jesse Temar confirmed in Court
under cross-examination that Mael Apisai was the Commissioner of Police at the
time of the snap operation
procedure. There was no evidence adduced before the
Court to show that the Police Commissioner Mael Apisai gave the orders for the
arrest and detention of the claimants. The
Snap Operations
Orders 2002 dated
3rd
August 2002, Exhibit
“C11”, was signed by Api Jack
Marikempo and not by the Police Commissioner Mael Apisai. The agreed facts make
it clear the Commissioner
did not authorize the operation. The operation was
against his appointment.
The
Vanuatu Police Force is a discipline force which means that all officers must
obey the orders of their superiors. Api Jack Marikempo
upon signing the
Snap Operation Orders
2002 gave the orders for the arrest and
detention of the claimants. The chain of authority from Api Jack Marikempo was
unlawful, it was
a mutinous operation knowingly commenced to undermine the
appointment of Mael Apisai as Police Commissioner. The arrest, detention
and
prosecution of the claimants were unauthorized acts by the police involved so
unconnected with their duty to uphold and enforce
the law of Vanuatu that the
government cannot be held responsible for the actions of those
involved.
Evidence has been
produced in court that the arresting Police Officers were in uniform and they
used a Government vehicle. It also
produced in court that the Sergeant Krem Bihu
who is the State Prosecutor appointed by the Public Prosecutor is the
prosecuting officer.
That evidence makes no difference. The officers acted
unlawfully the fact that they used government property without authority does
not make the government liable for their acts. This was
mutiny.
On
5th
December 2002, the Supreme Court of Vanuatu convicted Holi Simon, Api Jack
Marikempo, Paul Willie and Erick Pakoa of inciting mutiny,
kidnapping and false
imprisonment. On
9th
May 2003, the Court of Appeal upheld their convictions and sentenced each of
them to two years
imprisonment.
Given the police
officers who wrongfully arrested and falsely imprisoned the claimants were
taking part in a mutiny, the principle
of vicarious liability in
Bartonshell Coal Co
which was applied in the Vanuatu Case
of Tom J. Usamoli v.
H. Nalpini and the Public Service Commission, [2003] VUSC 41; Civil Case No. 25
of 2001, cannot be applied in this
present case because the Police Officers who were involved in the arrest and
detention of the claimants
were acting outside their course of
employment.
The Judgment of the
House of Lords in the case of
Racz v. Home
Office [1994] referred to earlier is a
good persuasive authority. I accept and adopt it as the test I apply in this
present case.
The second part of
the test in Racz
case is satisfied that is:
The unauthorized acts of the Police Officers were so unconnected with their authorized duties as to be quite independent of and outside those normal duties...
Therefore the government
is not vicariously liable for the actions of the police officers against the
claimants.
It is clear from the
facts that the convictions of Erick Pakoa, Holi Simon, Api Jack Marikempo and
Paul Willie Rueben by the Supreme
Court and upheld by the Court of Appeal shows
that these officers were engaged in unauthorized acts were so unconnected with
their
authorized duties as to be quite independent of and outside their normal
duties. The Government cannot be held vicariously liable
for actions of Police
Officers who were acting outside their lawful
authority.
On the basis of the
above considerations, the Court makes the following ORDERS:
1. The defendant is not liable for the actions of the mutineers on the 4th August 2002 as the police officers were acting without authority and outside the scope of their employment.
2. The claim for damages cannot stand and as such is dismissed.
3. The costs are awarded in favour of the defendant to be agreed or taxed.
4. The matter in civil case 112 of 2003 is adjourned to 2 September 2004 at 3.30 p.m. in the afternoon for conference in costs.
DATED
at Port-Vila this
24th
day of August 2004
BY THE COURT
Vincent
LUNABEK
Chief
Justice
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