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Mataika v Attorney-General of Fiji [1994] FJHC 35; Hbc0507j.92s (19 April 1994)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. HBC0507 OF 1992

Between:

JOSEFA KOROI TAWAKEDINA MATAIKA
Plaintiff

- and -

THE ATTORNEY GENERAL OF FIJI
Defendant

Mr. T. Fa for Plaintiff
Mr. V. Nathan and Ms. M. Sakiti for Defendant

JUDGMENT

On Thursday the 20th of August, 1992 during the annual Hibiscus Festival the plaintiff whilst returning from Albert Park was stopped in the vicinity of Gladstone Road by an Indian police constable dressed in uniform P.C. 2115 Bhagat Prasad (hereafter 'the arresting officer').

What transpired between them was related by the plaintiff in his evidence when he said:

"He (the constable) said: "You the one with dark glasses and cap on come here." I was dressed like that on that day because of the bright sunshine. The Constable held my left hand. He was an Indian. He held my hand and walked me back to the side of the road where he started telling me:

"We've been searching for you you are J. Katonivere there's a bench warrant for your arrest."

I identified myself. I said: "No I am Jone Mataika."

He insisted saying: "No you are lying you are J. Katonivere."

I said: "No I am Joe Mataika and work in Government Supplies Department. I am a Civil Servant."

He was forcing me to accompany him. Holding my hand and pulling me to follow him. I was unwilling to accompany him. Then he said: "My superiors have told me that you are J. Katonivere and you must accompany me to go and see them." I said: "No I'm not going because I'm not that person you are after." Then he said: "I've got powers to arrest" and then said: "Now I'm arresting you." I told him: "I will sue you for this." He said: "Go on sue me if you like you can tell that to my boss." I told him: "You'll be a very sorry person." He said: "Shut up and keep on walking."

The plaintiff was then led across the lawn outside the Government Buildings facing the Travelodge to the stairs leading up to the entrance to the High Court. There they were met by a Fijian police officer who told the Indian arresting officer that he had brought the wrong man and after a short exchange the plaintiff left.

Embarrassed and humiliated by the incident and dissatisfied with the policemen's actions the plaintiff wrote the next day to the Commissioner of Police expressing his: "... greatest disappointment and frustrations in the manner in which I was falsely accused and embarrassed publically by the unprofessional unethical and incompetent approach by your officers."

In the result the arresting officer was summoned before the Assistant Commissioner of Police and "reprimanded for such misconduct." However no apology was tendered to the plaintiff in the Commissioner's letter.

Still dissatisfied the plaintiff issued the present proceedings against the Attorney General claiming general and exemplary damages for 'false imprisonment'.

In its Statement of Defence the defendant averred that the plaintiff was simply asked to accompany the arresting officer and he willingly went with him and upon his true identity being established he was released. More particularly paragraph 4 avers:

"... though the defendant has powers to arrest and take people into custody for identification purposes he did not exercise such powers in the plaintiff's case as he willingly accompanied the police officer to the Police Post."

If I may say so the averment contrasts materially and fundamentally with the sworn testimony of the arresting officer where he said:

"I confronted the man at Gladstone Road on this side of the road. I didn't meet him at the middle of the road. He is in Court (plaintiff identified). I approached him and asked if he was Jone Katonivere. He replied he was not but was Josefa Koroi. I informed him that there was a bench warrant against him and I arrested him and took him to my Corporal."

Later in his examination-in-chief he said:

"Q: Who did you think the man you approached was?

A: I believed him to be Jone Katonivere.

Q: Arrested him?

A: Yes with that belief."

Later in cross-examination the arresting officer said:

"Q: Aware of Section 21 of the Criminal Procedure Code?

A: Yes I exercised my powers of arrest under the section which empowers me to arrest a person under bench warrant without being in possession of a warrant.

Q: Which paragraph relied upon to arrest?

A: Subsection (j) (reads). I say that applies here."

From the above there can be no doubting that the plaintiff was arrested and remained under arrest until such time as he was permitted to go by the arresting officer's superior and I so find.

In Halsbury's Laws of England (4th ed.) Vol.45 at paragraph 1325 it is written:

The gist of the action of false imprisonment is the mere imprisonment. The plaintiff need not prove that the imprisonment was unlawful or malicious, but establishes a prima facie case if he proves he was imprisoned by the defendant; the onus then lies on the defendant to prove a justification."

More recently Ralph Gibson L.J. discussed the relevant legal principles applicable to the tort of 'false imprisonment' when he said in Weldon v. Home Office [1990] 3 W.L.R. 465 at pp.470, 471:

"The intention necessary for commission of the tort is intentionally to do the act which causes the imprisonment. Added malice towards the imprisoned plaintiff is not necessary ... it is clear that the tort of false imprisonment can be committed without confinement of the plaintiff by walls or bars and locks. If a man is prevented from exercising his liberty ... by policemen he may thereby be falsely imprisoned.

What may amount to justification for arrest and imprisonment, as a defence to a claim for false imprisonment will depend upon the position in law of the person making the arrest and causing the complainant to be confined. A police constable has the same powers of arrest as a member of the public together with certain additional statutory powers. In general, an arrest on suspicion is not lawful unless there exists reasonable grounds for that suspicion: Dallison v. Caffery [1965] 1 Q.B. 348; and in an action for false imprisonment based upon wrongful arrest it is for the Court to judge the reasonableness of the suspicion."

It is convenient at this stage to look at the local statutory provisions which are applicable in this case and there is no better place to begin this discourse than the 'supreme law' of the land.

Section 6(1) of the Constitution lays down:

"No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases (of which the only relevant instance despite State Counsel's submissions to the contrary, is) -

(d) for the purpose of bringing him before a Court in execution of the order of a Court."

and Subsection 6 expressly provides:

"Any person who is unlawfully arrested or detained by any person shall be entitled to compensation therefor from that person, or from any other person or authority on whose behalf that person was acting."

Is Section 21(j) of the Criminal Procedure Code (Cap.21) a "law" in terms of paragraph (d) above? In my considered opinion it cannot be doubted that it is.

Section 21(j) of the Criminal Procedure Code clearly sets out:

"Any police officer may, without an order from a magistrate and without a warrant, arrest -

(j) any person for whom he has reasonable cause to believe a warrant of arrest has been issued."

In D.P.P. v. Virendra Singh Cr. App. 72 of 1986 the Fiji Court of Appeal had occasion to consider the nature and extent of a police officer's powers of arrest under Section 21 of the Criminal Procedure Code. Although the court dealt more specifically with Subsection (b) it nevertheless categorised Subsection (j) as being one of a group of 5 subsections which: "... specify that the officer should have reasonable grounds to suspect that a certain factual situation exists."

In the particular circumstances of this case that would mean that the arresting officer had reasonable cause to believe not only that a valid 'warrant of arrest' existed but also that the person being arrested was one and the same person named in the warrant.

Furthermore Section 100 of the Criminal Procedure Code (hereafter 'the C.P.C.') provides:

"When any person who is bound by any bond ... taken under this Code to appear before a Court, ... does not appear, the officer presiding in such Court may issue a warrant directing that such person be arrested and produced before him."

In this latter regard a copy of the relevant 'warrant of arrest' (Exhibit D2) has been produced. It is directed "To: All Police Officers" and commands them to arrest Jone Katonivere and bring him before the Magistrates Court. The warrant also discloses that the warrantee had failed to appear before the Magistrate Court, Suva on a specified day pursuant to a bail bond he had signed requiring him to do so.

The question that then arises is: Did the arresting officer have "reasonable cause" in terms of Section 21(j) of the C.P.C.?

As already observed in this case there was a valid 'warrant of arrest' issued by the Suva Magistrates Court for the arrest of Jone Katonivere. The Section however requires more than the existence of a valid 'warrant of arrest', in addition the arresting officer must have "reasonable cause" to believe that the 'warrant of arrest' is "for" the person being arrested.

In other words the identity of the person being arrested is critical to the lawful exercise by the arresting officer of his power under Section 21(j) or to put it in the form of a question: Did the arresting officer have reasonable grounds for believing that the person he arrested was one and the same person mentioned in the 'warrant of arrest'?

In Dallison v. Caffery [1965] 1 Q.B. 348, Diplock L.J. in discussing the nature of 'reasonable and probable cause' for an arrest without warrant said at p.370:

"When a felony has been committed, a person whether or not he is a police officer, acts reasonably in making an arrest without warrant if the facts which he himself knows or of which he has been credibly informed at the time of the arrest make it probable that the person arrested committed the felony. This is what constitutes in law reasonable and probable cause for the arrest."

Later at p.371 his lordship said:

"The test whether there was reasonable and probable cause for the arrest ... is an objective one, namely, whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant, would believe that there was reasonable and probable cause."

In this case the arresting officer not only claimed he knew the law but on his own assertion applied it in arresting the plaintiff. What then was the state of his knowledge and information immediately before and at the time when he arrested the plaintiff which viewed objectively would furnish him with "reasonable cause"?

The arresting officer in this case P.C.2115 Bhagat Prasad testified that on the day in question whilst standing outside the Suva Magistrate Court Room No.1 his superior NCO Cpl. 1609 Sowane Vucukula pointed to a man wearing a green shirt walking towards the city and instructed him to go and bring the man named "Jone Katonivere" as there was a bench warrant issued against him.

Shortly thereafter he left and went and arrested the plaintiff. He had no reason to doubt the accuracy of the Corporal's information as to the existence of the bench warrant "because he was my superior and I accepted his word." On that score I find that despite not having sighted the bench warrant the arresting officer had reasonable grounds to believe and did honestly believe that a valid bench warrant existed for the arrest of Jone Katonivere.

But did the arresting officer additionally have reasonable grounds for believing that the person he arrested was Jone Katonivere?

The arresting officer in his evidence in chief said: "I believed him to be Jone Katonivere" but in my considered view that is quite insufficient to satisfy the objective test against which such belief must be measured by the Court. It is necessary to consider all the circumstances under which the arresting officer's belief was formed in order to objectively gauge its "reasonableness" or otherwise.

In that regard the evidence of Cpl. Sowane is revealing. The Cpl accepted that when he pointed out the man to the arresting officer the man was "about 70 metres away". He could not recall (in Court) describing the man other than pointing at him. There were a lot of people around at the time and he had not observed the arresting officer after the latter had left in order to ensure that the man arrested was one and the same man he had pointed out to him. Indeed on his own evidence he had gone into Magistrate Court Room No.2 soon after the arresting officer left and had come out in time to discover the arresting officer's mistake in arresting the wrong man.

The arresting officer for his part said that Cpl. Sowane had "pointed out a Fijian man wearing green shirt going towards city area from Albert Park ground" in addition "the man was carrying a plastic".

In answer to the Court the arresting officer estimated that the man pointed out by the Cpl was about "100 metres" distant and "was not the only person walking along the road and there were a few other people wearing green shirts." He admitted temporarily losing sight of the man whilst descending the steps of Government Buildings after leaving the Cpl and with hindsight he frankly admitted that he could have made a mistake about the man that Cpl Sowane had pointed out to him because there were a lot of people around and he had lost sight of him.

When asked in cross-examination why he had arrested the man after the man had denied that he was Jone Katonivere the arresting officer replied: "Because I had not seen Jone Katonivere and I suspected he was Jone Katonivere." and later he said: "Since there was no one there to verify (the man's identity) I had no alternative but to arrest him."

At no time did he ask the man to prove he was not Jone Katonivere or provide any form of positive identification to confirm that he was who he claimed to be.

The arresting officer denied that the man he arrested had protested at his behaviour or was angry and talkative. He also denied that a crowd had gathered or followed them to Government Buildings and he testified that he only learnt of his mistake sometime after Cpl. Sowane had spoken to the man.

Having carefully considered the evidence in this case and the written submissions filed by learned counsels for the parties and mindful of the respective demeanours of the witnesses in this case I have not the slightest hesitation in preferring the detailed evidence of the plaintiff as to the events of the afternoon of the 20th of August 1992 and moreso where there is a conflict between the evidence of the plaintiff and the arresting officer.

I am satisfied that the arresting officer was the hapless victim of a situation which was fraught with uncertainty and doomed to end in failure. I also find that he had deliberately "down-played" the plaintiff's reactions and responses to the unfortunate and distressing situation in which he had been unwillingly and unwittingly placed.

In all the circumstances I am not satisfied that the arresting officer has discharged the burden of establishing a 'lawful justification' for the arrest of the plaintiff and I find that he had no reasonable grounds to believe that the plaintiff was Jone Katonivere the person named in the 'warrant of arrest' (Exhibit D2) or to doubt the credibility of the plaintiff's denial.

Needless to say I reject entirely any suggestion that the arresting officer was entitled to detain the plaintiff until such time as his true identity had been verified. No authority has been cited to support such a proposition nor in my view is such a power to be found in Section 21(j) of the C.P.C. which was specifically relied on by the arresting officer.

In Blundell v. A.G. [1968] N.Z.L.R. 341 where the appellant was restrained by police constables for some period in a public place and then was later taken to a police station while enquiries were being made as to whether or not a warrant had been issued for his arrest as alleged by a bystander, and which allegation later turned out to be completely incorrect.

Turner J. in rejecting the lawfulness of the appellant's restraint by the police said at p.356:

"Detention while making inquiries cannot in my opinion be justified under the law of this country."

Earlier in his judgment at p.352 the learned judge said:

"Where the facts show that the plaintiff has been restrained in the course of an arrest, then if a warrant has in fact been issued on a sufficient criminal charge, and what has been done is justifiable as having been done pursuant to such a warrant, all is plain sailing; but if, in fact, no warrant has been issued the matter becomes rather more subtle."

Then after outlining various statutory provisions which empowers a police constable to arrest without a warrant the learned judge said at p.354:

"... it would have been a defence in this case for the constable restraining the appellant to have proved that though there was no warrant for his arrest he believed on reasonable and probable grounds that the appellant had committed an offence for which ... the constable has power to arrest the offender without warrant."

In this case although State Counsel appears to suggest that there was such a belief on the part of the arresting officer nowhere in the pleadings or in the arresting officer's evidence can such a belief be found.

Finally Turner J. in rejecting a direction to the jury that if they thought such action as was taken by the Police was in the circumstances reasonable they might find for the defendant, said at p.354:

"This direction was bad in law; and the question for consideration ... was not whether the police officers had done more than was reasonable, it was whether, assuming that ... there was a restraint upon movement sufficient to amount to unlawful imprisonment, such restraint was justified by the provisions of the sections ... on the facts of the present case."

In similar vein McCarthy J. said at p.358:

"When it is said ... that the defence of reasonable and probable cause ... is open to a Police officer, the statement should be confined to the defence based on suspicion of an offence for which the plaintiff could be arrested without warrant. It is not an omnipresent defence; it does not entitle the officer to rely on the reasonableness of his actions as an all embracing justification in all cases no matter what his legal powers might have been. It applies only when the legal justification pleaded is that he had reasonable and probable grounds for believing that the person he was arresting had committed an offence for which the offender could be arrested without warrant."

In this case no such 'legal justification' has been pleaded but in any event the arresting officer plainly admitted not having sighted the relevant warrant (Exhibit D2) and therefore would have been quite unaware of the offence for which it was issued but even if he was, the offence of 'Drunk and Disorderly' under the Minor Offences Act (Cap 18) is prima facie 'non-cognizable', and in any event the bench warrant (Exhibit D2) was not issued for the commission of an offence as such, it was in its terms issued for an alleged breach of bail bond conditions.

Needless to say in this case it has never been suggested that the plaintiff committed any offence either in the presence of the arresting officer nor in the present circumstances would it be reasonable to infer the same on the mere existence of a bench warrant without any enquiry as to the offence (if any) for which the warrant was issued.

Even Section 22 of the C.P.C. which specifically empowers a police officer without a warrant to arrest a person "in order that his name or residence may be ascertained", requires not only that the person have committed or be accused of committing an offence in the presence of the officer but also, where a false name or address is given, the officer must have reasonable grounds to believe that the answers are false.

I mention this latter section not because it has been alluded to in the defendant's pleadings, evidence or submissions but rather to dismiss it as irrelevant and in order to compare and contrast it with the provisions of Section 21(j).

As for the question of damages, counsel for the plaintiff in his written submissions makes reference to a figure of $10,000 for general damages and a figure of $20,000 for exemplary damages as "not unreasonable". With respect I cannot agree nor have I found the reference to the case of Sam Matawalu or foreign awards of much assistance.

In the leading case of Rookes v. Barnard [1964] UKHL 1; [1964] A.C. 1129 Lord Devlin recognised several categories of actions which are appropriate for an award of exemplary damages. In particular his lordship said at p.1226:

"The first category is oppressive, arbitrary or unconstitutional action by the servants of the government ... for the servants of government are also the servants of the people and the use of their power must always be subordinate to their duty of service."

In this case there is not the slightest doubt in my mind that the actions of the arresting officer are to be regarded as the actions of the government and falls within Lord Devlin's first category and as such is amenable to an award of exemplary damages.

That is not to say that the Court makes "two awards" as appears to be implied in the Statement of Claim and counsel's submissions. As Lord Devlin said in p. 1228 (ibid):

"But the fact that the two sorts of damage differ essentially does not necessarily mean that there should be two awards. In a case in which exemplary damages are appropriate, a jury should be directed that if, but only if, the sum which they have in mind to award as compensation (which may, of course, be a sum aggravated by the way in which the defendant has behaved to the plaintiff) is inadequate to punish him for his outrageous conduct, to mark their disapproval of such conduct and to deter him from repeating it, then it can award some larger sum."

In Civil Appeal 2 of 1985 Amar Prasad v. Commissioner of Police and Attorney General of Fiji (unreported) Dyke J. in increasing the damages awarded in the Magistrate Court for unlawful arrest and unlawful confinement from $150 to $1,000 said at p. 2:

"The police do have considerable powers for dealing with crimes and the investigation of crimes, it is incumbent on them to act within those powers and not violate the fundamental rights of private individuals except only to the extent permitted by law. And it is up to the Court to see that they do not exceed those powers."

In that case the appellant had been wrongfully arrested in the early hours of the morning by the police and taken to the Sigatoka Police Station where he was interviewed and later released that same day.

More recently in Civil Action 275 of 1985 Nirmala Wati v. A. Hussain & Co and Asim Hussain in which a young woman was wrongfully detained in the Labasa Police Station for about 3 hours, Rooney J. awarded the plaintiff $500 in damages. Subsequently the Court of Appeal (in Civil Appeal 71 of 1986) although not disturbing the award observed at p.4 of its judgment:

"the figure of $500 may in the circumstances, appear somewhat low ...

Finally in Dane v. Evangelou [1978] 1 W.L.R. 455 Lord Denning M.R. in upholding an award of exemplary damages in that case under the second category of Lord Devlin said at p.459:

"In my opinion a sum awarded by way of exemplary damages is not to be weighed in nice scales. It is a question for the judge, having heard all the evidence, to award such sum as he thinks proper."

In this case considering all the circumstances surrounding the arrest of the plaintiff including the rather reckless and careless manner of his initial 'identification'; his subsequent arrest despite his protestations and after having properly identified himself to the arresting officer and the not unnatural feelings of embarrassment and anger at his humiliation in public and in the presence of his wife, I am satisfied that the plaintiff is entitled to an award of $1,500 together with costs to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Suva,
19th April, 1994.

HBC0507J.92S