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Lotawa v Attorney-General [2001] FJHC 160; Hbc0262d.2001s (10 December 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 262 OF 2001S

Between:

VILIAME LOTAWA
Plaintiff

and

THE ATTORNEY-GENERAL
Defendant

T. Fa for the Plaintiff
W. Calanchini for the Defendant

DECISION

This is another action arising out of the appalling events of 2 November 2000, a mutiny which took place at the Queen Elizabeth Barracks, Suva.

The Plaintiff, a member of the Fiji Military Forces, was formerly a member of the ironically named “Counter Revolutionary Warfare Unit” which was disbanded after the attempted coup of 19 May 2000.

It is generally believed that members of the disbanded unit led the mutiny which was eventually put down but not without loss of life and considerable other violence.

On 12 June 2001 the Plaintiff issued a writ and Statement of Claim. He claims:

(i) damages for assault;
(ii) damages for the tort of false imprisonment;
(iii) damages for breach of his constitutional rights to personal liberty (Section 23) and as a detained person (Section 27).

This is an application by the Attorney-General to strike out the Plaintiff’s writ and Statement of Claim on the ground that it discloses no reasonable cause of action (RHC O 18 r 18 (1) (a)).

On 21 August I gave leave to amend the summons to embrace rules 18 (b) and (d) of O 18. Although no amended summons has been filed the hearing of the application proceeded on the basis that all 3 rules were being invoked.
2.

In support of the application 2 affidavits were filed:

(i) Major Aziz Mohammed, 21 September 2001 and
(ii) Major Mason Smith, 21 September 2001.

The Plaintiff filed an affidavit in answer on 20 November 2001.

Mr. Calanchini filed an excellent written submission on 22 November, the day of the hearing. Briefly, it is submitted that:

(i) as pleaded the Plaintiff’s case does not allege that the state is vicariously liable for the action of the actual tortfeasors and that therefore there is no cause of action against the Defendant;
(ii) the pleadings do not comply with the requirements of Section 52 (2) of the Republic of Fiji Military Forces Act (Cap. 81);
(iii) the action is time barred by virtue of Section 52 (1) of the RFMF Act;
(iv) the claim for constitutional redress should have been brought in accordance with the High Court (Constitutional Redress) Rules 1998 (LN 113/98);
(v) had the claim for Constitutional redress been applied for in the proper manner then it would not have been accepted later than 30 days after the matters complained of and the claim is accordingly out of time;
(vi) in view of the fact that the Plaintiff is presently remanded in custody after being charged earlier this year with several serious criminal offences which are now the subject of a military preliminary inquiry the claim for damages for unlawful detention is premature.

In my view submissions (i), (iv) and (v) are well founded but I do not think that it is the Plaintiff’s case that the alleged actual tortfeasors were performing duties imposed on them under the RFMF Act and accordingly I reject submissions (ii) and (iii).

As to the remaining submission (vi) Mr. Fa clarified that the only period of detention which it is said was tortious unlawful imprisonment (paragraph 13 of the Statement of Claim) was the period of approximately 217 days prior to the Plaintiff being charged. In my opinion the Plaintiff’s claim for damages for this period does not fall foul of any of the provisions of Order 18 rule 18 and I therefore decline to strike out the Plaintiff’s claim.

M.D. Scott
Judge

10 December 2001