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Naco v Temo [2005] FJHC 714; HBC0138PJ.2002S (10 June 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 138 OF 2002

BETWEEN:

TIMOCI NACO
Plaintiff

AND:

SALESI TEMO
First Defendant

AND:

ATTORNEY GENERAL OF FIJI
Second Defendant

Hearing in Court: Monday 23 May 2005, Suva

Counsel: Plaintiff in Person
Mr. Keteca and Ms Karen for the First and Second Defendants

Date of Judgment: Monday 10th June 2005

PROVISIONAL JUDGMENT OF THE COURT

[1] The plaintiff, Mr Naco, runs a business. On 26 November 2001 he wrote to the Senior Court Officer at Suva Magistrates Court requesting a copy of the decision in a 1994 criminal case. He states he required it in relation to the business.

[2] The Senior Court Officer replied by letter dated 7 December 2001. He said

"Your 26 November 2001 letter refer (sic).

It was submitted to the Chief Magistrate for consideration and directions.

I am directed to advise you that your request (for a copy judgment) has been denied on the grounds that no good reason is provided for the request."

[3] Mr Naco did not write in stating his reason. On 20 December at about 2 p.m. he went to the Magistrates Court Registry to see Mr Singh. He was unavailable. Mr Naco went to see the acting Chief Registrar (he refers to him as the Deputy Registrar) with Mr Singh’s letter. The Registrar wrote, by hand, on the letter of 7 December

"SCO Magistrates Court.

Please attend to Mr Naco’s request for a judgment copy which he said that he would like to use as an "authority for a case he is dealing (as his reason)" It’s a public document and if he is required to pay a fee, then charge it

Thank you."

and then signed and dated it.

[4] Armed with this Mr Naco returned to the Magistrates Court Registry. There is a door in from the outside walkway and then a counter (about 80 centimeters wide) at which members of the public are attended to.

[5] It is from this point on there is a dispute as to what happened.

[6] Mr Naco states that he showed the note to a girl in the Registry. She took it to the Chief Magistrate. The latter’s secretary called him outside. He gave the letter to her she went away and came back and said "The Chief Magistrate doesn’t want to see you."

[7] Mr Naco accepts his normal speaking voice is loud. He told her "He’s not God. I want to see him. She went in. Next thing is police came and I was arrested and taken to a cell. Nothing else was said. The police just said "you come down with us." I went down to the cell at the Government Buildings."

[8] He says he was there for about an hour. He was the taken up into No. 1 Court. The Chief Magistrate was there and asked him what he wanted. Mr Naco says he told him about the request in the letter and the Chief Magistrate replied he hadn’t seen it. Mr Naco said that was between him and the SCO. The Chief Magistrate told him not to be cheeky and that he could send him to gaol. Mr Naco then says "I questioned ‘Why am I in court? I am never charged with an offence.’ After a while he told me to go. He didn’t reply (to the question) why am I in court, never charged?"

[9] In cross-examination he denied banging the counter in the registry at the second visit. He denied being threatening or abusive or smelling of alcohol. He said if she (the secretary) was scared then "she wouldn’t come and stand with me alone." The plaintiff is a well built man, sixty-seven years of age, the secretary is a slim, short woman. He said he didn’t know if he disturbed the Chief Magistrate. He accepted he was angry and that he heard and saw the Chief Magistrate when he said "arrest this fellow." He denied being abusive to the Chief Magistrate in Court.

[10] The plaintiff called Tomasi Tabulauvere in support. He had had lunch with the plaintiff and no alcohol was consumed. "They don’t sell liquor there." He corroborates the plaintiff’s sequence of events. He heard no banging on the counter. When he was told the Chief Magistrate’s reply he says "I heard the plaintiff was not a very happy man." When the police came to take him away he says "The plaintiff was not a happy man again. He wanted to know what were the charges. There were exchanges between the two. I put in my little bit." The plaintiff was taken away. Mr Tabulauvere was not in Court later that day.

[11] In cross-examination he stated "Mr Naco was angry. I have known him for so many years. He has a loud voice. He was not demanding." He disagreed with the suggestion Mr Naco was abusive or violent towards registry staff.

[12] The defendants called five witnesses, Ravinesh Raj, Assistant Court Officer, Wati Volavola, Assistant Court Officer, Asillika Masikolikoli, Assistant Court Officer, Roshni Ram, Secretary to the Chief Magistrate and the first defendant Salesi Temo.

[13] The first three gave evidence to the effect that when Mr Naco returned with the hand written note and was refused the judgment he became loud, angry, demanding and abusive. He banged the counter. He was attracting attention. Ravinesh Raj said "We tried to cool him. The situation was getting out of hand. He was not the only member of the public at the counter... I felt threatened by his appearance because of his demanding nature .... He might have assaulted me in the process."

[14] The Chief Magistrate’s Secretary, Roshni Ram saw Mr Naco in the walkaway. She thought it might help if she saw him. Naco had a raised voice and seemed angry. She considered it her duty to show the letter to the Chief Magistrate, and did so. Mr Temo said he stood by what he had said. He was, she believed, writing a judgment. She relayed the message to Mr Naco, who was then "very angry and shouting and wanted Temo to tell him these things personally. She went back to Mr Temo and returned again. "Naco was then very angry. Shouting at the top of his voice ‘Who the hell does he think he is. Does he think he is God.’ He was advancing to me, when he was very close I could smell liquor on his breath.... I was scared, very frightened... Temo opened his window and asked the police officers to take Naco to the cells. When he was talking at the counter I didn’t feel threatened. In the corridor when he was advancing and came close I thought he was going to hit me. He was really angry."

[15] Salesi Temo gave evidence. He was appointed on 1 February 1994 and was a Resident Magistrate at the time of these events. On the afternoon of 20 December he was in chambers. He was very busy writing judgments. He remembers his Secretary saying that Mr Naco wanted a judgment and that he’d dealt with the matter. No reason had been given for the request. He said he doesn’t normally see members of the public without an appointment. He has to be careful.

[16] Therefore Mr Temo instructed his Secretary to tell Mr Naco as there was no reason given for the request there was no point in seeing him. Had he been informed of the reason he would have given access to the judgment.

[17] Mr Temo said his Secretary was coming in and out. He could hear a commotion outside, even though the windows were closed, and the air conditioner was on. Mrs Ram briefed him in what was happening and told him she could smell liquor on his breath. He did not feel safe to see Mr Naco. When his Secretary said she had to stand between two police officers, "I had to use powers under the Courts Act to protect myself and Court Staff. I have looked at section 136(2). My understanding is Parliament has given powers if there is contempt in the face of the Court. [They have] to be used carefully and exceptionally. I had to act given the level of abuse and the briefing from my Secretary.... I expected the police officer to arrest you and take you to the police station." Mr Temo said the police didn’t appear to be acting so he ordered the plaintiff’s detention.

[18] An hour later in Court he says he explained to Mr Naco what was happening but it turned into a shouting match. Mr Naco wouldn’t listen. He was told to be careful as he might be formally charged with contempt. Mr Naco was shouting at the top of his voice. He told Mr Naco to go and he left. He said he had not come across such behaviour before in Fiji. He stated he might have been incorrect in his use of section 136(2) Criminal Procedure Code in these circumstances.

[19] The Plaintiff’s amended statement of claim reads from paragraph 17 "the first Defendant arbitrarily deprived the Plaintiff of his liberty and detained the Plaintiff without been (sic) charged for an offence. The First Defendant was breaching the constitutional rights of the Plaintiff, causing the plaintiff physical and mental stress and strain, such conduct was unfair, unjust, unreasonable, prejudiced and unconstitutional and denied the Plaintiff natural justice.

Wherefor the Plaintiff claims against the Defendants:-

(a) An Order that the First Defendant breached the Constitutional Rights of the Plaintiff namely:

• (i) S23 (1) A person must not be deprived of personal liberty.
  
• (ii) S25 (1) Every person has the right to freedom from torture of any kind, whether physical, mental or emotional, and from cruel, inhumane degrading or disproportionately severe treatment or punishment.
  
• (iii) S27(1) Every person who is arrested or detained has the right:
  

(a) to be informed promptly in a language that he or she understands of the reason for his or her arrest or detention and of the nature of any charge that may be brough.

(iv) S28(1) Every person charged with an offence has the right:

(b) to be given details in legible writing, in a language that he or she understands, of the nature of and a reason for the charge.

(b) An Order that the First Defendant’s actions were unreasonable and outside the scope and duties of his role as Magistrate:

(c) General Damages;

(d) Any other relief which to this Honourable Court may seem just;

(e) Cost of this action."

[20] The amended defence denied Mr Naco’s factual allegations and in particular in respect of the first defendant relied upon section 65(1) Magistrates Court Act, Chapter 14.

[21] Section 65(1) is headed "Protection of Judicial Officers" and reads:

"65. – (1) No magistrate, justice of the peace or other person acting judicially shall be liable to be sued in any civil court for any act done or ordered to be done by him in the discharge of his judicial duty whether or not within the limits of his jurisdiction provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of."

[22] The plaintiff and defendants gave written closing submissions. The first defendant stated he was acting under section 136(2) of the Penal Code.

Section 136(1) and (2) of the Penal Code state:

"136. - (1) Any person who –

(a) within the premises in which any judicial proceeding is being had or taken, or within the precincts of the same, shows disrespect, in speech or manner, to or with reference to such proceeding, or any person before whom such proceeding is being had or taken; or

(b) – (f)..........

(g) causes an obstruction or disturbance in the course of a judicial proceeding; or

(h) - (l) .......

(m) commits any other act of intentional disrespect to any judicial proceeding, or to any person before whom such proceeding is being had or taken.is guilty of an offence, and is liable to imprisonment for three months.

136- (2) When an offence against paragraphs (a),.... (g)... or (m) of subsection (1) is committed in view of the court, other than a magistrate’s court presided over by a third class magistrate, the court may cause the offender to be detained in custody, and at any time before the rising of the court on the same day may take cognizance of the offence and sentence the offender to a fine not exceeding forty dollars or in default of payment to imprisonment for a term not exceeding one month."

[24] The first defendant argues that if in fact he did exceed any power under section 136 then it was done in good faith and he is protected by section 65(1) of Magistrates Court Act.

[25] Neither party has addressed the question as to whether the kind of protection offerded by section 65 is available to the State. And, if so, whether or not it is constitutional.

[26] Section 3 Crown Proceedings Act Chapter 24 makes the Crown liable in tort as set out, but by subsection (5) states "No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connexion with the execution of judicial process."

But this is a claim under the Constitution.

[27] In broad terms, there is little dispute on the facts. Mr Naco had a note from the deputy registrar saying he was entitled to a copy judgment. This was denied to him. He raised his face, became angry and made a remark about the ‘Chief Magistrate’. The latter then ordered him to be detained and taken to a cell. He was there for approximately an hour before being brought to Court. There was a further exchange of words and he was released.

[28] There is no evidence to show that at any stage he was told why or by what power he was being arrested or detained. There is no evidence to show that, when he was brought into court, he was told what power was being exercised or purportedly exercised. He was only told "...be careful, or you might be formally charged with contempt."

[29] I find that all parties and witnesses were doing their best to recollect what happened. This incident happened nearly three and a half years ago.

[30] There were many discrepancies in the evidence of the defendants’ witnesses.

[31] I find that Mr Naco did loose his temper and became angry when, armed with the note, he was refused a copy judgment. He has, in ordinary speaking, a powerful voice. He raised his voice, was angry and said, referring to the Chief Magistrate, "He’s not God. I want to see him." I accept he did bang the counter a few times. Tomasi Tabulavuere stated the plaintiff had not drunk alcohol. I accept this.

[32] Mr Naco says he is aged 67 years. He still appears to be a fit and well built man. Given the circumstances I accept that the defence witnesses felt abused and threatened. Mrs Roshni Ram, the first defendant’s secretary, showed calm and courage in the circumstances.

[33] I accept the evidence of the first defendant, Mr Temo. Whilst judgment writing he had, outside his office, a man who was loud and demanding to see him, despite the messages he had sent. He had had relayed to him what was happening and the concerns of his staff. He could hear a commotion despite closed windows and air-conditioning. He opened his window and saw Mr Naco. There were police officers there who were apparently doing nothing.

[34] Mr Temo accepts he gave the instruction for the plaintiff to be taken to the cells. About an hour later there was the Court appearance and release.

[35] Mr Temo did not have power under section 136 Penal Code to order the arrest or detention of Mr Naco. That section is aimed at " contempts committed in the face of the court." There was no "judicial proceeding" being disrupted by Mr Naco’s behaviour. The first defendant was in his chambers working, albeit on judgment writing.

[36] Mr Temo accepted, in evidence, he may not have had power in these circumstances to order the arrest or detention of Mr Naco. He does state he believed himself to have such power and did so in good faith.

[37] I find that Mr Temo did believe he was in the limits of his jurisdiction when he ordered detention of Mr Naco and did so in good faith. The circumstances as I have found them support this. There is nothing to rebut it.

[38] The reasons for this immunity are well known. Accordingly I must dismiss the action against the first defendant.

[39] I turn to the second defendant. In his original statement of claim the plaintiff stated, at paragraph 17 and in the claim that he was alleging breaches of his constitutional rights. In his amended statement of claim he specified precisely the rights he was referring to.

[40] The High Court (Constitutional Redress) Rules 1998 set out the procedures for bringing an action for constitutional redress. In a number of respects this application does not comply with these Rules. The second defendant has not taken this point. Mr Naco is a litigant in person. It has been clear from the outset constitutional redress is being sought, and precisely which rights are involved from the time of the amended claim. The Attorney-General has been involved throughout.

[41] I find no party has been prejudiced by the failure to comply with the Rules. Accordingly I waive any breaches. I do not find there was an unreasonable time between the date of the incident, 20 December 2001, and the launch of proceedings, 2 April 2002.

[42] I find that Mr Naco was deprived of his liberty for approximately one hour. That deprivation might have been lawful had it been done by someone who had a power of arrest on the reasonable suspicion that Mr Naco had committed an offence for which he could be arrested. That is not the case here. No other exceptions can apply.

Accordingly I find there has been a breach by the State as represented by the second defendant of Mr Naco’s right under Article 23(1).

[43] I can find no evidence that begins to support Mr Naco’s contention that there was a breach of his rights under Article 25(1), Freedom from cruel or degrading treatment."

[44] I find there has been a breach by the State as represented by the second defendant of Mr Naco’s right under Article 27(1)(a) in that Mr Naco, having been detained was not "informed promptly in a language that he... understands of the reasons for his.... detention and of the nature of any charge that may be brought;"

[45] Article 28(1) states "Every person charged with an offence has the right:" and there is then a list set out. Mr Naco was not charged with any offence, so this Article is not engaged.

[46] There is one outstanding question on liability. Neither party has addressed this at any stage, including closing submissions.

[47] This is a provisional judgment. It will be finalised after hearing argument on the questions posed below. The parties will be given a further hearing date. They are to research and be prepared to argue the following questions:

(1) Is there any statute or authority which provides immunity to the state from an action for constitutional redress for acts or omissions of a judicial officer bona fide acting in the exercise or purported exercise of his or her judicial authority?

(2) If so, is such a provision constitutional?

[48] When I have heard argument and made a decision on these questions, then this judgment will be finalised. Argument must be directed to the two questions only.

[R .J. Coventry]
JUDGE

Solicitors:
Plaintiff in Person
Office of the Attorney General, Suva for the First and Second Defendants