IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CIVIL APPEAL NO.: 02 OF 2007
(Magistrates Court Criminal Case No. 298 of 2004)

BETWEEN:

DHARMENDRA ROY PRASAD f/n Kampta Prasad of Sangam Avenue, Labasa
Appellant

AND:

RUSIATE RYLAND
First Respondent

DIVISIONAL POLICE COMMANDER
Second Respondent

ATTORNEY GENERAL OF FIJI
Third Respondent

Mr. A. Sen for the Appellant
Mr. H. Rabuku for the Respondents

Date of Hearing: 30th August 2007
Date of Judgment: 25th September 2007

JUDGMENT

[1]	On 10th January 2004 the plaintiff Dharmendra Prasad was issued with a Traffic Infringement Notice pursuant to the provisions of the Land Transport Act for exceeding speed limit. The Traffic Infringement Notice issued to the plaintiff required him to attend the court on 3rd February 2004 unless he paid the fine within the stipulated time of twenty-one (21) days from the date of issue of notice. He says he paid the fixed penalty of $80.00 to the Land Transport Authority on 14th January 2004 so he had paid it in time.

[2]	A receipt issued by the Land Transport Authority dated 14th January 2004 was issued. It shows the payee Client Name as Courier Documents Parcels not the plaintiff. It does not show for what the fine was paid but that only goes to show carelessness on part of the Land Transport Authority.

[3]	However Traffic Case being Case No. 76 of 2004 was filed in the Magistrates Court regarding the offence of Exceeding Speed Limit. The defendant did not appear in court on 3rd February 2004 so the learned Magistrate issued a bench warrant for his arrest. The first respondent arrested the plaintiff pursuant to the warrant and took him to the police station. He was locked in the police cell for just over an hour. He was later released when the receipt was produced.

[4]	The plaintiff claimed for damages for wrongful arrest and deprivation of liberty. The learned Magistrate dismissed the plaintiff’s claim on the grounds that under Section 50 of the Magistrates Courts Act a police officer must obey orders made by the Magistrate and that a police officer cannot be sued in a civil court for executing a warrant.

[5]	The issue in this case is can a police officer be held liable for wrongful arrest if he arrests a person pursuant to a bench warrant issued by a judicial officer. This issue involves looking at the law on false imprisonment.

[6]	The tort of false imprisonment involves the infliction of bodily restraint which is not expressly or impliedly authorized by law. The plaintiff does not have to prove fault on part of the defendant. It is a tort of strict liability: R. v. Governor of Brookhill Prison – (2000) 4 ALL ER 15 at 20. It is for the defendant to justify arrest: James Satish Bachu v. Commissioner of Prisons & Others – HBC 269 of 2003.

[7]	The justification provided by the defendants is that the police officer acted under lawful authority in that is he was carrying out the statutory duty imposed upon a police officer to obey orders given by a Magistrate. A bench warrant is an order by a Magistrate to arrest a person. The police officer could not refuse to obey it or go behind the issuing of the warrant to check upon its lawfulness. Here the order to arrest was given by a Magistrate. The opinion or judgment to issue a warrant is interposed between the charge and the arrest. A judicial officer namely in this case a Magistrate acted according to his own judgment; he is not the agent of the prosecuting authority or the police. The prosecutor merely asks for a warrant. The Magistrate in his own deliberate judgment decides whether to issue it or not.

[8]	Section 50 of the Magistrates Act provides:

"All police officers are hereby authorized and required to obey the warrants, orders and directions of a magistrate in the exercise of his criminal jurisdiction, and so far as such obedience may be authorized and required by any Act in that behalf, of his civil jurisdiction."

Additionally Section 65(2) of the same Act provides an immunity from civil suit to those bound by law to execute lawful warrants or orders of a Magistrate. Section 65(2) provides:

"No officer of any court or other person bound to execute the lawful warrants or orders of any such magistrate, justice of the peace or other person acting judicially shall be liable to be sued in any civil court for the execution of any warrant or order which he would be bound to execute if within the jurisdiction of the person issuing the same."

[9]	The plaintiff’s argument is that the bench warrant issued by the Magistrate was unlawful. The submission is that since the plaintiff had paid his fixed penalty, he could not be subject to any other process. However, there was nothing before the court seized of the matter that the penalty had been paid to the Land Transport Authority. As such the Magistrate was entitled to order a bench warrant against the plaintiff pursuant to the provisions of the Criminal Procedure Code (Cap. 21) to secure his attendance in court.

[10]	The plaintiff is relying on the authority of Nirmala Wati v. A. Hussain & Co. Ltd & Another – 32 FLR 1. That is a case against the complainant itself for making a baseless complaint to police which led to Wati’s arrest and detention at a police station. The police were not parties to that action nor were the police required to justify the arrest and detention of Wati.

[11]	Section 65 of the Magistrate Courts Act must be considered in its entirety. It would be contrary to common sense that while a Magistrate is protected against a civil suit for making an order, a police officer who executes that order should be held liable in a civil suit. That does not stand to good reason. One can hardly expect a police officer to question the legality of orders given by a Magistrate.

[12]	I had invited Counsels to look at Section 3(5) of the Crown Proceedings Act Cap 24 which protects the State for acts of judicial officers done in the discharge of their judicial function. Section 3(5) provides:

"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."

[13]	The bench warrant was issued by the learned Magistrate acting in his judicial capacity within his jurisdiction. The plaintiff was arrested pursuant to it. This section would therefore provide protection to the Attorney General against such a claim.

[14]	A point of interest on the defence of lawful authority to a claim of false imprisonment was discussed in Percy v. Hall – 1996 4 ALL ER 523, a decision of the English Court of Appeal. The Court held that a defendant in a false imprisonment claim can rely on defence of lawful authority even though the legal enactment under which he acted was declared invalid. The plaintiffs there had made a claim in false imprisonment and argued that the bye laws under which they had been arrested were void due to uncertainty. The Court of Appeal held that the bye laws were not void. However Simon Brown LJ went on to say that even if the bye laws were ruled to be void, the arrests would not be tortious provided the defendants reasonably believed that the plaintiffs were committing an offence against the bye laws.

[15]	I have my sympathies for the plaintiff. It is indeed unfair for a person to be left without a redress even though he/she has been deprived of his liberty. An incident like the one before me was bound to happen given the provisions of the Land Transport Act regarding Traffic Infringement Notices. Section 92 of the Act requires a Traffic Infringement Notice to be placed before the Court within seven (7) days of issue but it gives a person twenty-one (21) days to pay the fixed penalty at the LTA Office. If the Land Transport Authority fails, as in this case, to notify the court, then a situation like the present is likely to occur. Given the volume of infringement notices issued by LTA officers, the likelihood of such occurrences recurring cannot be ruled out. It may well be that time to file infringement notices in court should be increased to twenty-one (21) days as by that time the Land Transport Authority would know who has paid the penalty and who has not.	

[16]	The appeal however is dismissed in view of the fact that the plaintiff was arrested pursuant to the order of a Magistrate acting in his judicial capacity and the various statutory provisions referred to above provide the police and the Attorney General a measure of protection against a civil suit arising out of such an act. Appeal is dismissed with costs fixed at $400.00 to be paid in fourteen (14) days.

[Jiten Singh]
JUDGE

At Labasa
25th September 2007