|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
[Report an error]
[F.A.Q.]
Supreme Court of Vanuatu |
[Recent Decisions] [Noteup] [Download] [Help]
IN
THE SUPREME
COURT
OF THE
REPUBLIC OF
VANUATU
(Civil
Jurisdiction)
Civil Case No. 45 of 2003
BETWEEN:
KAUPAJI
ELISA
Claimant
AND:
THE
GOVERNMENT OF THE REPUBLIC OF
VANUATU
First Defendant
AND:
THE
COMMISSIONER OF POLICE
Second
Defendant
AND:
THE
PUBLIC PROSECUTOR
Third
Defendant
Coram: Justice
Treston
Mr. Daniel for
Claimant
Mr. Botleng for
Defendants
Dates of Hearing: 10
& 11 August 2004
Date of Decision:
30th August 2004
RESERVED JUDGMENT
CLAIM
In
an amended claim, the Claimant sought damages for unlawful imprisonment and
malicious prosecution as follows:-
a) False Imprisonment. = VT186, 000
b) Distress, anxiety and injury to reputation cause
by the Malicious Prosecution. = VT465, 000
c) Legal costs including counsel's fees to appeal
decision of Island Court. = VT170, 950
d) The Claimants Maintenance and financial support.
(i) Tanna - 3 months & 2 weeks
103 days x VT500 per day = VT51, 000
(ii) Port Vila - 2 years 1 month & 8 days
770 days x VT770 per day = VT673, 750
e) Loss of house built in Futuna Island. = VT50, 000
f) Loss of foods gardens planted
(i) 1 banana gardens = VT30, 000
(ii) 2 manioc gardens = VT30, 000
(iii) 3 water taro gardens = VT40, 000
g) Separation from his 2 year old child for
3 years & 3 months = VT100, 000
h) Exemplary Damages (oppressive, arbitrary
and unconstitutional conduct) = VT3, 720, 000
Right
up until the end of the evidence, the Defendants denied liability but before
final submissions were made the Defence conceded
that the Claimant had made out
his case in relation to false imprisonment and malicious prosecution and they
accepted liability accordingly.
However, the Defence contested the quantum of
the claims as made out for false imprisonment, malicious prosecution and
exemplary
damages. In addition, the Defence submitted that the Claimant had not
made out his claims for maintenance and financial support,
loss of his house and
gardens and separation from his
child.
FACTS
In
about March 1999, a complaint was made that Paul Fatapa and the Claimant had
threatened to behead a clergyman on Futuna Island.
Two policeman from Tanna
Corporal Joseph Noks and Corporal Pierre Tiana, travelled to Futuna from Tanna,
to investigate the complaint.
An investigation was carried out and the Claimant
and Mr. Fatapa were arrested and taken to Tanna. They were taken to a cell at
the
Tafea Police station in Tanna and kept there from mid-day 4 March 1999 to
8am on 5 March 1999 and then charged and released. The
Claimant remained on
Tanna for 3 months and two weeks until the case was heard and he was convicted
by the Island Court on 14 June
1999.
The Claimant filed an appeal
out of time. It was heard in the Magistrates Court at Port Vila on 8 August 2001
and the conviction was
quashed. He remained on Efate for over two years waiting
for the appeal to be
heard.
HEARING
The
Claimant confirmed his sworn statement at the hearing and was cross-examined at
length. All the other witnesses were available,
but were not required to be
cross-examined and submissions were made by
counsel.
SUBMISSIONS
The
Claimant submitted that the appropriate award of damages for false imprisonment
was as claimed in the sum of VT186, 000 on the
basis of the case of
Harrisen
v Holloway
& The Commissioner of Police CC62 of
1984 - [1980-1994] Van LR 106 where the plaintiff was awarded VT180, 000 for
general damages.
In relation to
claim for distress, anxiety and injury to reputation caused by the accepted
malicious prosecution, counsel for the
Applicant referred to the case
Banga
v The
Commissioner of Police CC48 of 2003 where
the plaintiff was awarded VT232, 500 for 4 hours of interrogation and detention
in cell No. 6 for 15 1/2 hours.
The Claimant sought the sum of VT465, 000 under
that head.
A claim for legal costs
amounting to VT316, 793 was accepted by the
Defendants.
In relation for claim
for maintenance and financial support under paragraph 12 (d) (i) and (ii) the
Claimant submitted that although
there was no bail condition preventing him from
going back to Futuna and coming back to Tanna for the hearing, as he had no
money
he could not afford to go to and fro. It was submitted that damages under
that head should be granted because it was the fault of
the police and the
prosecution that the Island Court case took so long.
In relation to the claim for when
the Claimant was in Port Vila, the Claimant submitted that, as he had no money,
and as he relied
primarily on the support of friends and family, he could not
afford to travel back to Futuna and then come back to Port Vila and
he waited
for two years and one month for the outcome of this
appeal.
In relation to the claim
for loss of his house, loss of food gardens and separation from his child, the
Claimant submitted that the
sum which he sought should be granted because there
was no evidence to the contrary from Defence to disapprove his
claim.
In relation to exemplary
damages, the Claimant referred to the decision of
Moli
v
Heston
CAC no. 11 of 2000 where VT2 million was awarded for punitive damages in a
defamation case. Claimant's counsel accepted that the
stated claim of VT3 720
000 was excessive and that an award of VT2 million was more
appropriate.
In response, the
Defendants submitted that the country's economic conditions should be taken into
account in assessing the quantum
of damages in accordance with the Fijian Court
of Appeal decision of
Marika
v
Kapauji
ABU 49/98 and that the totality of damages due to the Claimant should be
considered rather than damages under separate heads of law,
as the case has
arisen from one incident. Reference made to
Thompson
v
Commissioner
of Police for the Metropolis [1977] 3 WLR
403 which was a wrongful arrest and imprisonment case where principles were as
follows:-
"(a) The total award should not exceed what is fair compensation for the injury the Plaintiff has suffered.
(b) Exemplary damage will only be awarded in exceptional cases.
(c) The starting point for normal wrongful arrest and imprisonment case in five hundred pounds, for the first hour and three hundred pounds for twenty-hours on a progressively reducing scale for each day thereafter.
(d) Awards of damage for false imprisonment should bear some relationship to awards of personal injuries."
The
Defence submitted that exemplary damages could only be awarded in special cases
where there was some deliberate oppression and
where a tort was committed
somewhat flagrantly and counsel referred to
Moli
v
Heston
(above) where the Court had said that where factors meant that a case was
particularly reprehensible and deserved condign condemnation
additional punitive
damages were justified. The Defence submitted that there was no evidence during
the trial to show that the Defendant
deserved that additional punishment and
agreed that the sum for exemplary damages should be VT150, 000 if
awarded.
The Defence submitted
that there was no proper proof of damages under the head of loss of house, and
loss of gardens and no justification
for claims for maintenance, financial
support and separation of the Claimant from his child.
FINDINGS
AND ASSESSMENT
This is a civil
case where the Claimant must prove his allegations on the balance of
probabilities. There is no onus on the defence
as the Claimant
submitted.
As I have said
Defendants have accepted liability for false imprisonment and the subsequent
malicious prosecution. It is clear that
the investigating officers failed to
competently and properly investigate the complaint as far as the Claimant was
concerned. Of
course the same did not apply Mr. Fatapa who was quite rightly
arrested, tried and convicted. He did not
appeal.
As to the claim for false
imprisonment in
Harrisen's
case (above) relied upon by the Claimant,
there had been loss of liberty for 60 days. This case involved loss of liberty
for 20 hours,
although added to that must be the element that the Claimant was
removed from Futuna to Tanna. The Defence submitted that VT100,
000 would be the
appropriate award but in the context of this case I consider that the award for
damages for false imprisonment should
be in the sum of VT150,
000.
As to the consequences of
malicious prosecution the Claimant sought an award of VT465, 000 and the Defence
submitted that VT200, 000
would be appropriate. I award under that head VT300,
000 taking into account that any proper assessment of evidence against the
accused
by the State Prosecutor would have revealed that the case had no
prospect of success.
Legal costs
of VT316, 793 were accepted by the
Defence.
As to the Claimant's
maintenance and financial support, in his own evidence the Claimant accepted
that he was not required to remain
on Tanna until the hearing of his case in the
Island Court. Certainly, he indicated that he did not have the means to pay for
the
fare to return to Futuna but under the law he has a duty to mitigate his
loss, and to remain on Tanna for 3 months and 2 weeks is
in my view,
unreasonable. Even more so his remaining in Port Vila for 2 years 1 month and 8
days until his appeal was heard was unreasonable.
During that time he conceded
that he made no effort to obtain any employment even in his capacity as a
gardener and it is my view
that the Defendants cannot be responsible for his
maintenance and financial support during the 2 years, 4 months, 3 weeks and 1
day
involved. Even if he were so entitled, he has failed to prove living costs
of VT500 per day in Tanna and VT770 per day in Port Vila
which is the basis of
his claim. No evidence was produced by the Claimant to substantiate those living
rates.
In relation to the alleged
loss of his house and the loss of food gardens, questions of mitigating his
loss, already referred to in
his claim for maintenance and financial support,
must of course impact on those claims. In addition, I find that in relation to
the
construction of the house and the number of plants in the gardens was
unsatisfactory. He said in his sworn statement that the house
was "built with
hard wood, natankura leave and bamboo walls". Under cross-examination he said
that it was made of an iron roof and
bamboo sides and what was in his statement
was a typing error. Again under cross-examination, the Claimant conceded that he
did not
know how many banana plants were in his gardens and also could not
remember how many manioc plants or taro plants he had. Even if
he had been able
to remember numbers, evidence in relation to proving his loss was
unsatisfactory. There was no evidence as to the
value of Banana plants, Manioc
plants or Taro plants in Futuna nor market availability for sale there and it is
my view that the
Claimant has totally failed to prove any loss of gardens in
accordance with his claim.
I also
find that there is no basis for his claim for separation from his child for the
period involved. Again the Claimant has failed
to mitigate any loss and prove
damages in that regard. As a matter of common sense, he ought to have raised
money in some way or
another and visited his child during the time referred
to.
As to exemplary damages, it is
clear that a proper initial investigation would have cleared the Claimant at a
very earlier stage avoiding
his being prematurely removed to Tanna and kept in
custody and subsequently prosecuted. A perusal of the Island Court proceedings
indicates that there was not a scintilla of evidence implicating the Claimant in
any threat and the State Prosecutor's decision to
prosecute the Claimant in the
Island Court was misconceived and ill-founded. I agree with the reasoning of
Webster J in the Tongan
case of
Kaufusi
v
Lasi
[1990] TLR 39 where he found that the authority to arrest someone without
warrant and deprive him of his liberty is such a powerful
one that it must be
exercised strictly as laid down and any failure to do so would almost inevitably
be oppressive, arbitrary or
unconstitutional. In my view this is an appropriate
case for an award of exemplary damages particularly as the officers' conduct
in
this case was sufficiently outrageous to merit such a result. That is so because
there was absolutely no evidence that they could
find to implicate the Claimant
and that was ably demonstrated not only by the fact that there was no evidence
against the Claimant
before the Island Court but also because Prosecutor did not
oppose the appeal when it was eventually heard in the Magistrates' Court
at Port
Vila.
While there is no evidence
that the Claimant has suffered injury to his reputation as a result of the
wrongful confinement, there
was clearly oppressive, arbitrary and
unconstitutional actions by the officers in course which they took. While it
could be said
that the other damages in the particular circumstances could
adequately compensate the Claimant for his false imprisonment and wrongful
prosecution, the particular facts as in this case necessitate, in my view, an
additional element requiring exemplary relief. Effectively
also the fundamental
rights of the Claimant in this case were breached by the officers. Such rights
were:-
(a) Liberty,
(b) Security of the person,
(c) Protection of the law,
(d) Freedom from inhuman treatment, and
(e) Freedom of movement
(See Article 5 (1) of the Constitution of the Republic of Vanuatu)
As
I have already said, the Claimant during the trial submitted that the
appropriate claim under this head was VT2, 000, 000. The
Defence submitted that
the figure should be VT350, 00. In the light of the comments I have made, my
view is that the award of exemplary
damages should be in the sum of VT1 million
and I order
accordingly.
CONCLUSION
The
Defendants have accepted liability. Although the Claimant has named the
Government, the Commissioner of Police and the Public
Prosecutor as joint
Defendants it is my view that the Commissioner and Public Prosecutor are arms of
the Government and the award
of damages should be against the Government itself
although responsibility clearly lies somewhat against the Commissioner of Police
and the Public Prosecutor.
I award
damages in accordance with the above findings as follows:-
False Imprisonment VT 150, 000
Malicious Prosecution VT 300, 000
Legal costs (agreed) VT 316, 793
Exemplary Damages VT1, 000, 000
____________
Total VT1, 766, 793
============
I enter judgment for the
Claimant against the First Defendant
accordingly.
Dated
AT PORT VILA, this
30th
day of August
2004
BY THE COURT
P.
I.
TRESTON
Judge
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback|
Report an error
URL: http://www.paclii.org/vu/cases/VUSC/2004/93.html