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