IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 003 of 2008

BETWEEN:

DHARMENDRA ROY PRASAD
Plaintiff

AND:

1. DIVISIONAL PROSECUTING OFFICER NORTHERN
2. RUSIATE RYLAND
3. ATTORNEY GENERAL
Defendants

Before: Master Udit
Counsel: Mr. A. Sen for the Plaintiff/Respondent
Mr Raramasi for the Defendant/Applicant

Date of Decision: 19th December, 2008

DECISION

(Striking-out judicial Immunity - Immunity of officers executing court orders - (striking-out - malicious prosecution))

Introduction

[1] On 3rd April, 2008 the plaintiff filed a Summons under Ord. 18, rule 18(1) of the High Court Rules 1988 and the Inherent Jurisdiction of this Court inter-alia seeking an order that the plaintiff's writ of summons together with the attached statement of claim filed an 6th February 2008 be struck out on the grounds:-

(a) That it is scandalous, frivolous and vexatious.

(b) It is otherwise an abuse of the process of the Court.

[2] The application is supported by an affidavit of Ajay Singh an Executive Officer (Litigation) employed by the office of the Solicitor General sworn on 27th March and filed on 3rd April, 2008. The plaintiff strongly opposes the application.

The facts

[3] The plaintiff is a businessman residing in Labasa. The first defendant is the Divisional Prosecuting Officer Northern, who is in charge of prosecuting criminal cases at the Labasa Magistrate's Court. The second defendant, at all material times was a police officer duly employed by the Fiji Police Force. In addition the plaintiff has sued the Attorney General under the State Proceeding Act (Cap 24).

[4] On or about 1st February, 2004 the plaintiff was issued a Traffic Infringement Notice No. 277068 (TIN) by a Police Constable for exceeding speed limit for which a fixed fine of $80.00 (Eighty dollars) is prescribed. The said fine was supposed to have been paid within 21 days thereof, failing which, the accused was to appear before the Labasa Magistrate's Court on 3rd February, 2004. The plaintiff opted to pay the fixed penalty as prescribed by the Notice. It is alleged that despite the plaintiff having paid the fine, the Divisional Prosecution Officer on 3rd February, 2004 applied to the Magistrate for an Order to compel the attendance of the plaintiff in Court to answer to the charges laid in the TIN.

[5] It is further claimed that on 3rd February 2004, when the matter was listed before the Magistrate's Court, the Second Defendant informed the Learned Magistrate that the plaintiff had failed to pay the fine as prescribed by the TIN. Since the plaintiff did not appear in Court, it is alleged that the Divisional Prosecuting Officer sought an order to issue a bench warrant under the Criminal Procedure Code for the arrest of the plaintiff and that he be brought to Court.

[6] On behalf of the plaintiff it is pleaded that the criminal proceedings were instituted against the plaintiff without any colour or right and further the Prosecuting Officer possessed no powers to seek the bench warrant. The plaintiff claims that the Divisional Prosecuting Officer knowingly sought an order for the bench warrant with a malicious intent.

[7] Pursuant to the bench warrant issued by the learned Magistrate on 10th July 2004 the plaintiff was arrested by the policed and allegedly retained at the Labasa Police Station. He was not brought to the Court as required by the bench warrant. He was kept under the detention for approximately 2 hours.

[8] Mr Sen during the submissions stressed that prior to the arrest, the plaintiff had informed the arresting officer that the warrant against the plaintiff was invalid as he had already paid the fine. The plaintiff requested time from the arresting officer to enable him to produce a receipt from the Land Transport Authority. However it is claimed that the arresting officer refused to allow anytime and thereby caused the plaintiff to be forcefully removed from his premises in view of other neighbours. In the statement of claim it is pleaded that the officer "dragged him out like a dangerous criminal causing him shock and injury." As a result of the incident the plaintiff claims to have suffered injury to his reputation and health, thus loss and damages. Particulars of special damages are doctor's fees and transportation costs, which are claimed at $500.00 each. By way of final relief the plaintiff claims special damages, general damages, interests and costs of this proceeding.

[9] The State Law Office instead of filing a defence proceeded with this application to strike out the action.

Consideration

[10] Before I proceed to consider the application to strike out let me state the specific cause(s) of action decipherable by the pleading. Although not very clearly pleaded, the two causes of action referable from the statement of claim are malicious prosecution and false imprisonment. Malicious prosecution seems to be the primary cause of action, which is encapsulated in paragraph 9 of the statement of claim. It is said to be malicious, firstly that the Divisional Prosecution Officer Northern sought an order from the Learned Magistrate for the issuance of the bench warrant with the knowledge that the need for the same was not fair. Secondly the plaintiff claims that the Divisional Prosecuting Officer knew that he had no powers to obtain such a bench warrant. This put together according to the plaintiff constitutes malice on the part of the Divisional Prosecuting Officer Northern. Thus the purported malicious act gives rise to a reasonable cause of action.

[11] For a plaintiff to successfully plead a cause of action for malicious prosecution he/she must plead the following:

(1) The previous proceedings instituted by the defendant of which he complains;

(2) That in so far as they were capable of doing so they terminated in his favour;

(3) That there was no reasonable or probable cause for the defendant instituting or carrying out those proceedings that the defendant was actuated by malice;

(4) That he has suffered damage.

(see Halsbury's Laws of England 4th Ed. Vol 45 para 1368.)

In addition, plaintiff must also plead any actual financial loss suffered as a result of the alleged malicious act.

[12] In order to succeed in a malicious prosecution Lord Devlin in the House of Lords in Glinski -v- McIver [1962] AC 726, at page 765 laid down test as follows:-

"my Lords it is a common place that in order to succeed in an action for malicious prosecution the plaintiff must prove both that the defendant was actuated by malice and that he had no reasonable and probable cause for prosecuting"
(emphasis added)

[13] What is a reasonable and probable cause? Hawkins J in Hicks -v- Faulkner [1878] 8 QBD 167 at 171 said:-

"it is not required of any prosecutor (in an action claiming malicious prosecution) that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is reasonable and probable cause of prosecution. Circumstances may exist in which it is right, for charging a man with misconduct, to ask him for an explanation; but no general rule can be laid down, and where a person is satisfied, or had apparently has sufficient evidence, that he had in fact being cheated, there is no obligation to call on the cheat and ask for any explanation, in as much as to ask for this may be act of causing material evidence or no .............."(emphasis added)

[14] Let me consider the pleadings in view of the above principles. Firstly there is no dispute that there was a proceeding instituted in the Magistrate's Court. However those proceedings were not instituted by the Divisional Prosecuting Officer. The TIN was issued by the Land Transport Authority. Therefore, it is doubtful as to whether the Divisional Prosecuting Northern instituted the proceedings. Secondly that the defendants concede that the proceedings instituted was ultimately decided in favour of the plaintiff. Thirdly, is the issue of the 'reasonable or probable cause'. The Divisional Prosecuting Officer Northern merely appears for the Land Transport Authority for the prosecution of traffic cases. The TIN was called in the Court because the Land Transport Authority had not advised of the payment of the fines. When the Prosecuting officer sought the bench warrant, he was unaware of the plaintiff's position regarding the payment of the fine.

[15] In prosecution of infringements under the Land Transport Act 1998 or Regulations thereto Section 93(4) provides that where an offender has not pleaded guilty to the offence prescribed by the Notice the, "prosecution of the same is governed by the Criminal Procedure Code." Section 93(4) states "If a Traffic Infringement Notice served upon a person has not been accepted by payment of the fixed penalty within 21 days of the date of Traffic Infringement Notice, the Notice shall be regarded for all purposes as a summons issued under the provisions of the Criminal Procedure Code." When the matter was called at the Labasa Magistrate's Court on 3rd February, 2004, the plaintiff (offender) failed to attend. It was only prima-facie appropriate for the Divisional Prosecuting Officer to seek a bench warrant, which was issued under S 90 of the Criminal Procedure Code (Cap 21). That provision states that "if a accused does not appear at the time and place appointed in and by the summons and his personal attendance has not been dispensed with under Section 88, the Court may issue a warrant to apprehend him and cause him to be brought before such Court."

[16] The question follows is whether the Divisional Prosecuting Officer maliciously acted due to his ignorance of the fact as to the payment of fine or he bona-fide sought the bench warrant. His duty, which I have stated above, is to seek a bench warrant on non appearance of an accused and not to ascertain the probable defence. The question he asks to himself is:- "Whether there is reasonable or probable cause for prosecution to seek a bench warrant?" When an accused fails to appear in Court and in particular for a TIN, what is the prosecutor required to do? Obviously he requires securing the attendance of the accused in future. This is exactly what the prosecutor did.

[17] Further, the pleading must show that the prosecution was actuated by malice. All the plaintiff pleads is that the Divisional Prosecuting Officer knowingly sought a bench warrant for the arrest of the plaintiff. How would the Divisional Prosecuting officer be aware whether the fine was paid or not on the first call of the TIN in the ordinary course of the prosecution? At least this does not happen every day. Based on the records of the prosecution, the plaintiff had failed to pay the prescribed fine. In default of the appearance the course of seeking bench warrant was open to the prosecuting officer. His only duty is ask for a bench warrant to be issued. The discretion is with the Magistrate, under Section 90 of the Criminal Procedure Code which states that the Court may "issue a warrant to apprehend and cause him to be brought before such Court." As the statement of claim stands, there is not a scintilla of evidence of any act intentional or otherwise that the Divisional Prosecuting Officer when seeking the bench warrant was actuated by any malicious intent.

[18] In addition the plaintiff must have suffered damage. No doubt he was arrested by the police and locked up for 2 hours. Ordinarily that gives rise to claim for damages. However in this case the issue of damages is questionable. Before I finish off from the pleadings another element which the plaintiff ought to plead is the actual special damages arising out of the alleged malicious prosecution. Although special damages are pleaded it lacks any particulars. This is insufficient. Having considered the pleading in my view it does not constitute a valid cause of action in malicious prosecution. Accordingly I so order.

Arrest by Police Officer

[19] Next issue concerns the arrest of the plaintiff by Second defendant Rusiate Ryland a Police Officer. This matter has already been decided by the Magistrates Court and upheld by the High Court on appeal in Dharmendra Roy Prasad -v- Rusiate Ryland, Divisional Police Commander and Attorney General of Fiji Labasa High Court Civil Appeal No. 02/2007.

[20] The Second defendant arrested the plaintiff pursuant to an order of the learned Magistrate. It was directed to all police officers to execute the warrant in accordance with Section 93 of the Criminal Procedure Code which provides:-

(1) A warrant of arrest shall normally be directed general to all police officer, but any Court issuing such a warrant may if its needed execution is necessary no police officer is immediately available directed to any other person or persons and such person a person shall execute the same.

(2) When the warrant is directed to more officers or person than one may be executed by all or anyone of them. What had the Second defendant done? The defendant submits that he had acted lawfully pursuance of an order of the Magistrate carrying out his statutory responsibility. Equally important it was not open to the Second defendant who refused to comply with the order of the Magistrate's Court. That would have resulted in other proceedings against the officer himself or being called upon by the Magistrate to answer to charges to his statutory obligation.

[21] Pursuant to Section 3 of the Police Act (Cap 85) "it shall be the duty of every police officer promptly to obey and execute all orders and warrant lawfully issued to him by any competent authority to collect and communicate any intelligence affecting the public peace, prevent the commission of an offences and public nuisances, to detect and bring offenders to justice and to apprehend all persons whom is legally authorised to apprehend and those apprehensions sufficient grounds exists." Where a police officer acts in pursuant of the lawful authority he is given a statutory protection from any civil suit under Section 20 of the Police Act (Cap 85). That provision states, "where the defence to any suit instituted against a police officer is that the act complained of what was done in obedience of a warrant purporting to be issued by a Magistrate or a Justice of Peace, the Court shall upon production of the warrant containing the signature of the Magistrate or Justice of Peace and upon proof that the act complain of was done in obedience to such warrant enter a judgement in favour of such Police Officer."

[22] That is not the end of the protect given to the Police Officer's. Section 50 of the Magistrate's Court Act further provides that "all police officers are hereby authorised and required to obey the warrants, orders and directions of Magistrate in exercise of his criminal jurisdiction and so far such obedience may be authorised and required by any act on that behalf of in a civil jurisdiction". In obeying such orders under Section 65(2) of the Magistrate's Court Act "No officer of any court or other person bound to execute the lawful warrant or orders of any such Magistrate or justice of Peace or other person acting judicially shall be liable to be sued in an execution of any warrant which he would be bound to execute if within the jurisdiction of the person issuing the same."

[23] Having briefly glossed over the statutory provisions, I will now return to the case of Dharmendra Roy Prasad -v- Rusiate Ryland and Others to which I have earlier referred to. The issue of the Rusiate Ryland, arresting the plaintiff was considered by the Magistrate and on appeal by His Lordship Mr. Justice Singh. That issue has been decided to its fullest. The decision of His Lordship Mr Justice Singh was not appealed. In that case the plaintiff sued the Divisional Police Commander, who is now substituted by Divisional Prosecuting Officer Northern, who apparently comes under the command of the Divisional Police Commander. At paragraph 7 of the judgment His Lordship stated:-

"...the justification provided by the defendants is that the police acted under lawful authority in that he was carrying out the statutory duty imposed upon a police officer to obey orders given by a magistrate. A bench warrant is an order by a magistrate to arrest a person. The police officer could not refuse to obey it or go behind the issuing of warrant or its lawfulness. Here the order to arrest was given by a magistrate. The opinion or judgment to issue a warrant is inter pose between the charge and the arrest. A judicial officer namely in this case a Magistrate acted according to his own judgment. He was not the agent of the prosecuting authority or the police. The Prosecutor merely asked for a warrant. The Magistrate in his own deliberate judgment decides whether to issue it or not."

[24] His Lordship continued and concluded at paragraph 16 of the judgment as follows:-

"The appeal however is dismissed in view of the fact that the plaintiff was arrested pursuant to the Order of the Magistrate acting in his judicial capacity and various statutory provisions referred to above provides the Police and the Attorney General a major protection against a civil suit arising out of such an act."

[25] In that regard I do not need to say anything further but to conclude that the plaintiff is now litigating an issue in so far as the Second and Third defendants are concerned has already been decided by the High Court on its appellant jurisdiction.

[26] There is no element of malice or for that matter false imprisonment alleged against the Attorney General. The claim is not based under the Constitution on its own as such I shall not consider any of those matters; Naco -v- Salesi Temo & Attorney General Civil Action No. HBC 0138/2002 Dharmendra Prasad -v- Attorney General Civil Appeal No. ABU 0036/94..

Res-Judicata

[27] It was argued on behalf of the defendant that his action constitutes an abuse of process under the doctrine of res-judicata. They are also relying on the narrow question of "issue estoppel" The defendants argued that an identical case was filed by the plaintiff against the Second defendant. The plaintiff's claim in that action was founded on unlawful arrest. That issue has been conclusively decided against the plaintiff. On appeal, His Lordship Mr Justice Singh dismissed it.

[28] Mr Raramasi submitted that in the present case all the plaintiff's has done is substituted the Divisional Prosecuting Officer Northern in place of the Divisional Police Commander. Save for that the whole action remains the same. At page 7 of the written submissions the defendants state; "it is patently obvious from the plaintiff's statement of claim that the current action is similar to the previous one which has been determined by the Court."

This is in relation to the issuance of the Traffic infringement Notice No. 277068 for exceeding it's speed limit where he was required to pay $80.00 within 21 days or appear before the Labasa Magistrate's Court on 3rd February, 2006, which is again included in this pleading. The plaintiff is again contesting the issuance of warrant that has been issued by the Court."

[29] I concur with the conclusion of the defendants' on this point. Although a party has been changed in this proceeding, the plaintiff essential is prosecuting the same claim which has already been dismissed by the Court. The major substratum and character of the action is the same. The plaintiff is now estopped from bringing this action against at least on the present pleadings against Rusiate Ryland, and the Attorney General. If a plaintiff files an action to prosecute a matter which has already been determined by the Court, it constitutes an abuse of the process of the Court. In doing so, I find that the plaintiff has abused the process of the Court.

[30] However, Mr Sen submitted that the present action is for malicious prosecution against the First defendant. I have already stated, the pleading on its own do not disclose a cause of action in malicious prosecution. Without prejudice to those findings, in my view the defendants are correct in submitting that by changing the party the plaintiff is now restrained under the principle in Henderson v Henderson(1843) Hare 100 at pg. 115 to commence fresh proceedings. Malicious prosecution was a cause of action open to the plaintiff at the time the earlier action was instituted. Accordingly it should have been filed then.

[31] The principle in Hendersen -v- Hendersen (supra) is well established. In Johnson -v- Gore Wood & Co [2002] 2 AC 1 after discussing a plethora of decisions on the subject, Lord Bingham at page 31 of the judgment re-stated the Rule in Hendersen in the following words:-

"But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice."
(emphasis added)

[32] These principles have been considered by the Court of Appeal in Reserve Bank of Fiji - v- Gallagher Civil Appeal No. ABU 0030, ABU 0031, ABU 0032/2005 (14th July, 2006) (per Ward P and Baker JA and Henry JA). See also discussion in Kaiafa Biu Ledua Colonial Life Fiji Limited Suva High Court Civil Action No. HBC 288 of 2004 (18th August, 2008)

[33] On the facts, the plaintiff was required to bring forward his whole case at the time of the filing of the first action. This was not brought forward for the reasons best known to the plaintiff. "A plea of res-judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce judgement, but to every point which properly belong to the subject of litigation, and which the parties, exercise in reasonable diligence, might have brought forward at the time": Hendersen -v- Hendersen (Supra). There are no special circumstances shown by the plaintiff as to why this cause action of action was not included in the earlier action. Under the circumstances, I conclude that the plaintiff ought to have pursued this cause of action in the earlier suit. No special circumstance is demonstrated by the Plaintiff. I hold that this action is an abuse of process under the Hendersen principle.

Judicial Immunity

[34] The fourth issue is of judicial immunity. The learned magistrate is not sued nor is there any malicious intent alleged against the order made by the magistrate. Under the circumstances there is no need to consider those submissions, Save to say the officers executing the orders of the Court are given special statutory protections from being sued in a Civil Court.

Loss of Reputation

Lastly in the Statement of Claim the plaintiff pleads that the manner of the arrests has resulted in loss of his reputation. He was arrested under a Judicial Warrant, which does not give rise to a cause of action in defamation. Rajeshwar Singh -v- Penaia Samusamuvodre & Attorney General Lautoka High Court Civil Action No. 194 of 2001 (19 December, 2008).

Conclusion

[35] For the foregoing reasons I hold that the plaintiff's action be dismissed for no reasonable cause of action and abuse of the Court process. The defendants are entitled to costs which I summarily asses at $350.00 dollars. Accordingly, so ordered.

J. J. Udit
Master