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Wainiqolo v Commissioner of Police [2002] FJHC 97; HBC0565d.2000S (15 February 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0565 OF 2000

Between:

SAMU WAINIQOLO, TALEAI WAINIQOLO,
ASIPELE WAINIQOLO, SINAMA WAINIQOLO,
HALA TOA WAINIQOLO, ANE WAINIQOLO
VAUBULA, UGATEA WAINIQOLO TINAIU
and JASATEKI WAINIQOLO
First Plaintiffs

and

PAULA TINAI
Second Plaintiff

and

1. THE COMMISSIONER OF POLICE
2. CORPORAL 2069 EMOSI RACULE
3. POLICE CONSTABLE 1435 TAWAKE SORO
4. POLICE CONSTABLE 1094 TEVITA COVE
5. THE ATTORNEY GENERAL OF FIJI
Defendants

Mr. Anu Patel for Plaintiffs/Respondents
Mr. A. Adamu & Luke Daunivalu for Defendants/Applicants

DECISION

This is the defendants= (the >applicant=) application by way of motion to strike out the plaintiffs= Statement of Claim and that the action be dismissed on the ground that the same is an abuse of the process of the Court. The application is made pursuant to Order 18 Rule (1)(d) of The High Court Rules 1988.

The motion was heard and the parties filed written submissions.

In the Writ of Summons dated 5 December 2000 the respondents /plaintiffs have sought compensation from the defendants for the value of fishing equipment seized by the defendants on 1 November 2000, return of same, loss of income, damages, interest and costs on the ground that the said equipment were and are unlawfully seized and detained by the defendants.

The defendants have filed a Statement of Defence denying liability; but in this application they are saying that the action is an abuse of the process of the Court ab initio.

The plaintiffs while opposing the application rely on their Statement of Claim. They say that the defendants on 1 November 2000 wrongfully took and carried away the underwater breathing apparatus of the plaintiffs and thereby the plaintiffs have suffered loss and damage. They say that they were duly licenced to fish and to use the apparatus seized.

The plaintiffs are challenging the lawfulness of the seizure of items belonging to them and this challenge they say can only be launched by action in Court. The learned counsel submits that summary procedure under Order 18(1)(d) cannot be used as an instrument of oppression to defeat the constitutional right of the plaintiffs to seek redress from Court.

They submit that the defendants= application be dismissed with costs.

Consideration of the issue

Both counsel made useful written submissions in law. I have considered them and in the light of the facts and circumstances of this case it is clear that the claim in the writ of summons cannot be brushed aside without a proper hearing in Court in the trial of the action.

It is the defendants= contention, inter alia, that because they say that whatever action they took during the investigation and seizing the items were well within their power, there was nothing wrong with it in law and therefore the plaintiffs= action is an abuse of the process. However, upon reading the affidavit evidence before me and the pleadings so far filed, it appears that there are triable issues and these in my view cannot be dealt with under Order 18 as an abuse of the process.

In coming to this conclusion I have noted the underlying principles in a striking out application and I am grateful to both counsel for referring them to me.

In dealing with the issue whether the present action is an abuse of the process of the Court, I bear in mind the following passage from Halsbury=s 4^th Ed. Vol. 37 para 425:

The power to strike out, stay or dismiss under the inherent jurisdiction is discretionary. It is a jurisdiction, which will be exercised with great circumspection and only where it is perfectly clear that the plea cannot succeed, it ought to be exercised sparingly and only in exceptional cases. However, for this purpose the court is entitled to inquire into all the circumstances of the case, and to this end affidavit evidence is admissible. (my emphasis)

For the law on the application of this Order it is stated thus in the Notes to Or.18 r.19 in The Supreme Court Practice 1979 Vol. 1 p.312 thus:

>it is only in plain and obvious cases that recourse should be had to the summary process under this Rule= and that >it can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable= (AG. of Duchy of Lancaster v L. & N.W. Ry. Co [1892] UKLawRpCh 134; [1892] 3 Ch 274, C.A.).].

In the light of this principle, I find that this is not a case where recourse could be had to Order 18. Whilst I so hold I am not unmindful of the Constitutional provision in regard to power of arrest and seizure. Also not forgetting that until the police investigate the plaintiffs= alleged involvement, they may not be able to come to any conclusion one way or the other. The rationale of this was discussed by Watkins L.J. in R v Howell [1981] 3 All E.R. 383 at 388 as follows:

AThe public expects a policeman not only to apprehend the criminal but to do his best to prevent the commission of a crime, to keep the peace, in other words. To deny him, therefore, the right to arrest a person who he reasonably believes is about to breach the peace would be to disable him from preventing that which might cause serious injury to someone or even to many people or to property. The common law, we believe whilst recognising that a wrongful arrest is a serious invasion of a person=s liberty, provide the police with this power in the public interest@ (emphasis mine).

Before I part with the application before me, there is one matter which is causing me some concern, it is this that the second, third and fourth defendants who are police constables and come under the first defendant have been joined as parties. This appears wrong to me; the Commissioner of Police should suffice. Therefore, unless the plaintiffs raise any objection within 14 days of this decision I propose to remove the second, third and fourth defendants as party to the action.

For the reasons stated hereabove I dismiss the defendants= application with costs in the cause.

D. Pathik
Atg. Judge

At Suva
15 February 2002