Lata v Simione [2009] FJHC 242; HBC004.2009 (29 October 2009)

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KHEM LATA
f/n Michael Raghwan and
BIJESH CHAND
F/N Panchan Dass
both of Lautoka
Plaintiff

DC 2891 SIMIONE, PC 4178 SAU, PC 1735 JOELI,
CPL 2498 DRUMA, DC SAKIUSA, PSO RUPENI, KMINIELI K & ORS
1ST Defendant

[1] The defendants wish to strike out the plaintiffs writ and claim on the grounds that the statement of claim:-

[2] The jurisdiction to strike out proceedings under Order 18 Rule 18 is guardedly exercised, and only in exceptional cases where, on the pleaded facts, the plaintiff could not succeed as a matter of law. It is not exercised where legal questions of importance are raised.

[3] And even an inchoate feeling that at the end of the day, a claim is likely to fail is not firm enough ground to strike out a claim (see NZ Court of Appeal decision in New Zealand Maori Council –v- A-G [1996] 3 NZLR 140 at 175-6, per Thomas J; Fiji Court of Appeal decision in National MBF Finance –v- Nemani Buli (CA No. 0057/1998; Tabauvale –v- Divisional Engineer Northern [2004] FJHC 173; HBC 0033/2001B (23 January, 2004, as per Fatiaki CJ).

[4] And usually, in an Order 18 Rule 1 (a) application, the Court will limit its inquiry into the facts as pleaded. Hence there is no requirement for parties to file an Affidavit. Where shortcomings in a pleading are curable by an amendment, Courts will use their discretion to allow the offending party to amend their pleading rather than strike it out. Marshall Futures -v- Marshall [1992] 1 NZLR 316 at 324.

[6] The Plaintiff pleads three causes of action: first an allegation of Unlawful Detention, second a case for Breach of Statutory Duties, and third (which is really the same as ground one) for False Imprisonment.

[7] On false imprisonment, the Plaintiff alleges that at about 2.30 p.m. on 9th August 2008, Khem Lata was alone in her shop at Natokowaqa when several police officers (all named as first plaintiffs) surrounded her shop and searched the shop with a search warrant. The search lasted for about 1 hour. During the search, Lata was locked and detained inside the shop by these officers. The police officers had both steel doors locked and Lata alleges that she was restrained from leaving the shop. Lata also alleges that she was not allowed to even call her husband. She adds that her daughter who was outside at the time, was not even allowed to enter the shop. Lata alleges in paragraph 7 of her Claim that the officers accused her of receiving stolen property. She pleads that the police officers threatened to detain her until all the items in their search list were found. Later the same day, the police raided the plaintiffs residence in Tavakubu with a search warrant and took away jewellery belonging to her daughter and accused the 2nd Plaintiff of theft and of receiving stolen properties. The jewelleries were retuned several weeks later with no criminal charges laid nor any reasonable explanation about its return.

[8] Paragraphs 8, 9 and 10 of the Statement of Claim allege that the police officers breached the Criminal Procedure Code Cap 21, the Police Act, Cap 85, the Penal Code, Cap 17 and the Constitution of the Republic of the Fiji Islands 1997 when, in executing the search warrant, detained Lata and denied her the opportunity to call her husband or any family member. It is also alleged that the officers failed to ensure Lata’s personal safety. Personal threats were alleged to have been made against Lata which insulted her person and dignity. It is also alleged that the officers tortured Lata psychologically and physically which caused Lata to suffer "everlasting mental anxiety".

[9] It is alleged that the officers did not have reasonable or probable cause and acted with malice in denying Lata her liberty and freedom of movement for an hour during the search. Paragraphs 12. i. to 12 v. Allege that the officers detained Lata without any criminal charges and failed to inform her of the reasons for her detention or for the search and denied Lata any opportunity to contact her husband.

[10] Mr. Green submits that the Plaintiff does not dispute the legality of the search warrant. He adds that so long as the requirements of section 103 of the Criminal Procedure Code are met, the execution of the search warrant cannot be questioned.

[11] Section 103 prescribes when a search warrant should be issued. It puts the onus on a police officer who wants to execute a search on a "property" to first prove on oath to a Magistrate or a Justice of the Peace certain things before they can be authorized by search warrant to search a property.

[12] Mr. Green emphasizes that a search warrant in only issued after the police officer has proven through the laying of information that he or she has reasonable suspicion that "anything upon, by or in respect of which an offence has been committed or "anything which is necessary to the conduct of an investigation into any offence" is in any "property". He then argues citing the South Australian Supreme Court case of R –v- Zotti No. Sccrm -01- 325 [2002] SASC 154 that reasonable suspicion "is less than proof of a fact whether to the standard of the civil or criminal law".

[13] Mr. Green further submits in paragraphs 4.3 to 5.3 that because there is no dispute that the search warrant was lawfully obtained, and that the police officers executed the search on a reasonable suspicion, it was up to Lata to prove it to the contrary (citing Crystal Clear Video Ltd –v- Commissioner of Police [1988] FJHC 1, where Inoke J reiterated the maxim "omnia praesumuntur rite esse acta donec probetur in contrrium" i.e. that all things are presumed to be done legitimately until the contrary is proven). He also refers to the rather broad immunity (with narrow limits) in section 20 of the Police Act to police officers who are being sued for acts they carry out pursuant to a warrant issued by or purporting to be issued by a Magistrate or Justice of the Peace.

[14] On the Plaintiffs allegations of breach of rights, Mr. Green argues in paragraphs 6.0 to 6.3 of his submissions that the police officers at all material times acted on the authority of a search warrant which was unquestionably lawful and regular. He submits therefore that "Police Officers are not liable [by virtues of section 20 of the Police Act] for any claim of breach of rights for "an act done in obedience to such a warrant" (my emphasis).

[15] On the allegations of breach of statutory duties, Mr. Green submits that the Plaintiff has not particularized sections in legislations and it is therefore difficult for the Defendants to respond to broad open ended allegations. He then discusses the two-thronged test for breach of statutory duties and submits that the Plaintiff fails to meet even the first test.

[16] At the outset, Mr. Tunidau emphasizes that it is still open to him to amend or improve on his pleadings. He says that whatever the shortcomings of his pleadings, the bare facts raised in the pleadings are enough to sustain a reasonable cause of action. He conceded in Court that he has no qualms that the search warrant was validly issued. However, his client’s case is founded on events which he alleges happened during the execution of the search warrant. And the case theory he puts forward is premised on the legal argument that a regular search warrant issued under section 103 of the Criminal Procedure Code does not necessarily validate any violation of human right done purportedly in the course of execution of the warrant.

[17] Mr. Tunidau itemizes in his submissions various legal issues which he argues are raised by the facts as pleaded. He submits that the issues are triable. I must say that I found his phraseology of the issues rather long-winded and confusing but I have modified them considerably below for the sake of clarity:

(i)	whether a search warrant issued under section 103 of the Criminal Procedure Code also authorizes the police officer who executes that search warrant in any building, ship, carriage, box, receptacle or place to detain any person that he finds suspicious in that building, ship, carriage, box, receptacle or place in the course of executing a search?
(ii)	after a police officer seizes an item in the course of executing a search warrant, is he or she required to carry the item immediately upon seizure before the Court? Is the police entitled to retain the seized-item and carry it only to Court at the completion of investigations? Is the police authorized under section 103 to retain and preserve any seized-item for evidence at trial and to carry it into Court only at trial? Whether a failure or neglect on the part of an officer to carry a seized-item into Court must undermine the validity of a search warrant and weaken any case of theft and receiving stolen property against the plaintiffs?
(iii)	whether sections 23 and 27 of the Constitution were breached on the detention of the 1st plaintiff and rendered such detention unlawful?
(iv)	whether the 1st Plaintiff was under arrest upon being detained by the police in her shop?

[18] Both counsels have discussed the law on striking out quite comprehensively. To reiterate, the summary procedure under O. 18, r. 19 is used sparingly and only to cases where the cause of action must be so clearly untenable that they can not possibly succeed (see Attorney General –v- Shiu Prasad Halka 18 FLR 210 at 215, as per Justice Gould VP; see also New Zealand Court of Appeal decision in Attorney -v- Prince Gardner [1998] 1 NZLR 262 at 267.

[19] His Lordship Mr Justice Kirby in Len Lindon -v- The Commonwealth of Australia (No. 2) S. 96/005 summarised the applicable principles as follows:-

1. it is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided.

2. to secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action ....or is advancing a claim that is clearly frivolous or vexatious....

3. an opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination......Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.

4. summary relief of the kind provided for by O 26 r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer....... If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.

5. if, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading ......A question has arisen as to whether O 26 r 18 applies to part only of a pleading

6. The guiding principle is, as stated in O 26 r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

[20] I have considered the plaintiffs Statement of Claim and the written submissions.

[21] The first defendants obtained a lawful search warrant to search the plaintiffs shop and residence. On 9th August 2008, they executed the search warrant firstly at the plaintiffs shop and then at her residence. The first plaintiff was in her shop at all material times. Upon entering the shop in the course of executing the warrant, the defendant officers locked up the shop and detained the Plaintiff in the shop. She was denied any freedom of movement in the shop. She was not allowed to even call her husband. She was threatened and told that she would be detained in her house until all the items on the police’s search list were found. I note that allegations of "malice" and "maliciously instituting the detention" appear in the pleadings. No criminal charges have been laid and the items have since been returned.

[22] The plaintiffs have no qualms about the police’s powers to search their shop/house. The basis of their grievance is the alleged malice with which the first plaintiff was detained.

[23] False imprisonment/unlawful detention is the unlawful imposition of constraint upon another's freedom of movement from a particular place. This tort protects a person from restraint.

[24] A person can be falsely imprisoned without his knowledge though in such cases can expect to recover no more than nominal damages (Meering v Graham-White Aviation Co Ltd (1920) 122 LT 44 and Murray v Ministry of Defence [1988] UKHL 13; [1988] 2 All ER 521).

[25] Section 27(1) (d) and (f) of the Constitution Amendment Act 1997 say a person who is arrested or detained has a right to be given the opportunity to communicate with, and be visited by his or her spouse or next of kin and to be treated with humanity and with respect for his or her inherent dignity.

[26] In court, Mr. Tunidau argued the Plaintiff was detained, though she was not arrested. Mr. Green concurred. In Murray v Ministry of Defence [1988] UKHL 13; [1988] 2 All ER 521, the House of Lords held that where a person was detained or restrained by a police officer and knew that he was being detained or restrained, that amounted to an arrest even though no formal words of arrest were spoken by the officer. The plaintiff had been under restraint in her own house during a lawful search from the moment she was identified and must have realised she was under restraint. She was though not formally arrested until half an hour after the search was concluded. The House of Lords held that she had been under arrest from that moment of restraint, notwithstanding that the officers did not make a formal arrest until half an hour later. The circumstances of the plaintiffs arrest were such that it was reasonable for the officers to delay speaking the words of arrest until the plaintiff and the soldiers were leaving the house and the failure to make a formal arrest did not render the plaintiffs arrest unlawful. The appeal would therefore be dismissed.

[27] The law on breach of statutory duty is clear. The careless performance of a statutory duty will not give rise to a cause of action unless there exists a right of action for breach of statutory duty simpliciter or a common law duty of care in negligence (X (minors) v Bedfordshire CC [1995] 3 All ER 353).

[28] Some statutes expressly create a right of action for breach of their terms whereas others expressly exclude a civil action for breach of statutory duty (see examples can be found in Winfield & Jolowicz, p 249 fn.16, or Textbook on Torts, p404).

[29] And where a statute is silent as to whether or not a breach is actionable, the courts will attempt to 'discover' the intention of Parliament using the rules of statutory interpretation and certain presumptions.

[30] The general rule that is that 'where an Act creates an obligation, and provides an adequate remedy for its breach, or some other means of enforcement, there is a presumption against conferring a right of common law action for breach of statutory duty (Lord Tenterden CJ in Doe d Bishop of Rochester v Bridges [1831] EngR 57; (1831) 1 B&Ad 847, 859:
Wentworth v Wiltshire County Council [1993] 2 All ER 256
Issa v Hackney LBC [1997] 1 All ER 999
O'Rourke v Camden LBC [1997] UKHL 24; [1997] 3 All ER 23).

[31] Conversely, where the statute does not provide a remedy the assumption is that there will be a common law right of action for a breach of the duty (see Cutler v Wandsworth Stadium Ltd [1949] 1 All ER 544
Reffell v Surrey County Council [1964] 1 All ER 743).

[32] It has been said that the court should not admit an action for breach of statutory duty where the claimant's existing common law remedies would be sufficient redress (see: Phillips v Britannia Hygienic Laundry [1923] 2 KB 832 McGall v Abelesz [1976] QB 585).

[33] Though, in certain types of cases, the availability of an alternative common law remedy has not precluded an action for breach of statutory duty established by (see Groves v Lord Wimborne [1898] UKLawRpKQB 138; [1898] 2 QB 402).

[34] And conversely, the absence of a common law remedy has not necessarily persuaded the courts to allow an action for breach of a statute (see Issa v Hackney LBC [1997] 1 All ER 999).

[35] And yet still, another approach to existing remedies is to say that an action for breach of the statute should be allowed where it would supplement the common law rule, but not if it would undermine the common law (cf. Monks v Warbey [1935] 1 KB 75
Richardson v Pitt-Stanley [1995] 1 All ER 460
Quinn v McGinty (1998) Rep LR 107 (Scotland)

[36] However, Lord Diplock in Lonrho Ltd v Shell Petroleum Co [1981] 2 All ER 456, recognized two exceptions to this general rule. First, where the obligation or prohibition was imposed for the benefit or protection of a particular class of individuals, and secondly, where the statute creates a public right and an individual member of the public suffers 'particular damage'.

[37] Mr. Green’s discussion of the of law on breach of statutory duty was insightful. The allegation of breach of statutory duty may lack strength. One does not argue breach of statutory duty when alleging a breach of a Constitutional right. The appropriate course for an aggrieved party is either to institute Constitutional Redress proceedings or a common law action.

[38] I have misgivings also about whether the Criminal Procedure Code Cap 21, the Police Act, Cap 85 and the Penal Code, Cap 17 do create (either expressly or impliedly) a right of action under common law for breach of any of their provisions.

[39] I am of the view though that a breach of their provisions may also found a common law action, if accompanied by malice and unreasonableness. Those are matters of evidence. So, in my view, the facts as pleaded in my view discloses a reasonable cause of action vis a vis the allegation of unlawful detention. The legal issues Mr. Tunidau highlights above in his submissions are triable. I admit that I do harbor the feeling that the claim(s) is/are likely to fail, that feeling is but an inchoate one and is not even firm enough ground to strike out a claim (see New Zealand Court of Appeal in New Zealand Maori Council –v- A-G [1996] 3 NZLR 140 at 175-6).

[40] Taking into consideration the totality of the pleadings and the submissions of both the counsel, I am of the view that this is not a claim which is ‘so clearly untenable that it can not probably succeed‘.

[41] I strongly urge Mr. Tunidau to revisit the statement of claim and amend it to reflect clearly the cause(s) of action and particulars thereof in a succinct and more concise manner. The pleadings are so infested with prolixity and he should direct his attention to the rules of pleading in Order 18 Rules 5 to 12 of the High Court Rules to accentuate the facts. Accordingly, I now dismiss this application and grant leave to the plaintiff to amend the statement of claim clearly reflect the claim for unlawful detention and false imprisonment and the basis for which malice is alleged.

High Court of Fiji

Lata v Simione [2009] FJHC 242; HBC004.2009 (29 October 2009)