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Nainima v Commissioner of Police [2004] FJHC 505; HBC0306.1998L (10 November 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0306 OF 1998L

BETWEEN:

ALIKISIO NAINIMA
Plaintiff

AND:

COMMISSIONER OF POLICE
1st Defendant

AND:

THE ATTORNEY GENERAL OF FIJI
2nd Defendant

Counsel:
Mr. H.A. Shah for the plaintiff.
Ms. S. Tabaiwalu for the defendants

Hearing: 1 November 2004
Judgment: 10 November 2004

JUDGMENT

The plaintiff claims against the defendants damages for false imprisonment and malicious prosecution.

The plaintiff on Saturday, 24^th January 1992 was waiting for a bus outside New World Supermarket, Namaka when the occupant of a taxi asked if he was going home. He got in the taxi and went to his home at Votualevu. On arrival at his home, he paid the taxi driver $2.00.

On Saturday, 25^th January 1992, at 5.00am the plaintiff was arrested and taken to the Namaka Police Station and later to the Airport Police Post where he was questioned with respect to an alleged robbery with violence of a taxi driver.

Whilst being held at the Airport Police Post, he asked the police to bring the taxi driver, whose base was near New World Supermarket, Namaka, to ascertain if he identified him as his assailant.

The police did not do so.

The plaintiff and another were charged with robbery with violence and held in custody until 27^th January 1992 when he was taken before the Magistrates Court at Nadi.

The Magistrates Court Record, Exhibit P-1, shows that on that day the prosecution opposed bail and the plaintiff was remanded in custody until 31^st January 1992 when he again appeared before the Magistrates Court, Nadi. The proceedings were on that day adjourned for hearing on 3^rd April 1992 and the plaintiff was granted bail.

The matter did not proceed to a hearing on 3^rd April 1992 and the plaintiff appeared before the Nadi Magistrates Court on a total of 22 occasions before the proceedings were finally disposed of by the plaintiff being discharged on the 8^th October 1996, after 7 hearing dates had been set and the prosecution were unable to proceed due to the absence of witnesses.

Four and a half years had elapsed since the plaintiff first appeared before the Nadi Magistrates Court. During this appalling saga, the plaintiff failed to appear before the court on 2 occasions – 5^th February 1993 when he was working in Votualevu and on the 3^rd May 1993 when he was working in Vatulele and bad weather prevented him travelling. On both occasions the matter was listed for mention only. No hearing date was vacated due to the actions of the plaintiff.

The plaintiff gave evidence that he was informed by the police on the first occasion the matter was listed for hearing, that the taxi driver had hanged himself.

The defendants called no evidence and relied on the pleadings, denying liability and submissions by counsel.

There is no reason why I should not accept the evidence of the plaintiff in its entirety.

Whilst this fiasco took place between 1992 and 1996, regrettably such dilatory behaviour of Magistrates in granting adjournments is continuing resulting in proceedings being permanently stayed on a regular basis. From the court record, it would appear the plaintiff was unrepresented on all appearances before the Magistrates Court.

The Law

Malicious Prosecution

If there is no foundation for them no doubt they were not ultimately succeed, but during their progress they may cause great injury. It is the right of everyone to put the law in motion if he does so with the honest intention of protecting his own or the public interest, or if the circumstances are such, be his motives that they may, as to render it probable prima facie that the law is on his side. But it is an abuse of that right to proceed maliciously and without reasonable and probable cause for anticipating success and thereby to cause damage to another” – Clerk & Linsdell on Torts – Fifteenth Edition p. 859.

The essential elements that the plaintiff must prove are:

1. That a prosecution on a criminal charge was commenced against him by the defendant;
   

2. That the prosecution was determined in his favour;

3. That the prosecution was without reasonable and probable cause; and

4. That it was malicious.

The absence of belief in the defendant’s mind as to the merits of the case will no doubt afford strong evidence of malice – Hicks v Faulkner (1878) 1 Q.B.D. 167. Also any lack of good faith in his proceedings – Haddrick v Heslop [1848] EngR 13; (1848) 12 Q.B. 267.

False Imprisonment

A false imprisonment is complete deprivation of liberty for any time, however short, without lawful excuse.

If a party is arrested without a warrant and taken before a magistrate, who thereupon remands him, he must seek his remedy for the first imprisonment in an action in trespass (false imprisonment) and for the imprisonment on remand in an action for malicious prosecution – Lock v Ashton [1848] EngR 878; (1848) 12 Q. B. 871.

The Evidence

The only evidence before me is the record of the Nadi Magistrates Court and the oral evidence of the plaintiff.

The defendants called no evidence.

The plaintiff says he denied the allegation from the moment of his arrest and that on the day of his arrest he asked that the taxi driver, the alleged victim of the robbery with violence, be brought to the Police Post to see if he identified him as the assailant or one of the assailants.

The only evidence of the death of the taxi driver is the hearsay evidence given by the plaintiff that he was told, on the occasion that the matter was first listed for hearing, by a police officer, that the taxi driver had hanged himself. The court record shows this to be the 8^th May 1992.

The plaintiff gave evidence that he travelled in a taxi from New World Supermarket on 24^th January 1992 and that he paid a fare of $2.00. The cross-examination of the plaintiff did not address the issue of the death of the taxi driver but merely that he was arrested on a Saturday and that the first available court was on the following Monday and that the first accused failed to appear on some occasions.

It was also put to the plaintiff that he was discharged due to the proceedings being over 4 years old. He said no it was because the witnesses were not present. The court record speaks for itself and the reference to “seven hearing dates have been given” suggests that it was more than mere delay that caused the accused to be discharged.

The record does not show that any of the 22 adjournments were at the request of the accused.

Whilst the evidence as to the death of the victim is most unsatisfactory, I must ask why were there 22 adjournments and 7 hearings dates if the witnesses were available?

Liability

Whilst it may be that the commencement of the proceedings by the arresting and questioning of the accused on the 25^th January 1992 was for a reasonable and probable cause that cannot justify the subsequent conduct of the prosecution. There must have been an absence of belief in the prosecutors mind as to the merits of the case after the death of the victim. This is further evidenced by the vacation of the hearing dates and the 22 adjournments over 4 ½ years. I think on the balance of probabilities, it is reasonable to conclude that the prosecution became a malicious prosecution after the 8^th May 1992. There were therefore 18 unnecessary court appearances over a period of in excess of 4 years.

I am not satisfied that the arrest and detention of the plaintiff from Saturday the 25^th January 1992 to Monday the 27^th January 1992 is wrongful imprisonment. From 27^th January 1992 to 31^st January 1992, the plaintiff was on remand by the court and that is not wrongful confinement. I find therefore for the defendant on the claim for damages for wrongful confinement (false imprisonment).

Damages

The plaintiff claims general and punitive damages for malicious prosecution.

On the 24^th January 1992, the plaintiff was married with 6 children and was working for Telecom, taking home $134.00 per week. This would equate to $26.80 per day.

In X v Attorney General (1996) 2 NZLR 623 Williams J said at p. 631:

“As to punitive or exemplary damages, ...it is enough to note that such damages are only awarded to punish the defendants because of the outrageous or contumelious way in which they have conducted themselves in committing the tort for which they are sued (Donselaar v Donselaar [1982] NZCA 13; (1982) 1 NZLR 97...As Auckland City Council v Blundell [1986] NZCA 86; (1986) 1 NZLR 732 at p. 739 makes clear, exemplary damages must be “fairly and reasonably commensurate with the gravity of the conduct thus condemned.”

The plaintiff is entitled to General Damages in the sum of Five Thousand Dollars ($5,000.00), which amount includes his lost wages in attending the Magistrates Court throughout the 4 ½ years and in addition the sum of Five Thousand Dollars ($5,000.00) seems appropriate by way of exemplary damages.

The conduct of the defendant in forcing this matter to be tried in the manner in which it was means that it should pay the plaintiff’s costs on an indemnity basis.

Orders

1. Verdict and judgment for the plaintiff in the sum of Ten Thousand Dollars ($10,000.00).
   
2. The defendants to pay the plaintiff’s costs in the sum of Two Thousand Dollars ($2,000.00).
   

JOHN CONNORS

JUDGE

At Lautoka

10 November 2004