Curusese v Attorney General of Fiji [2008] FJHC 373; HBC 190.1999 (19 December 2008)

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Counsel: Mr. Nawaikula for the Plaintiff/Respondent
Ms. N. Karan for the 1^st Defendant Applicant

(Striking-Out - Wrongful Imprisonment - Plaintiff sentenced to imprisonment -decision reserved on appeal - Plaintiff served the sentence - whether damages can be claimed)

[1] On 16^th April, 1999 the plaintiff, Mataiasi Curusese commenced this writ action against the defendants, namely Attorney General and Commissioner of Prisons. Essentially, the claim is that the Magistrate sentenced the Plaintiff to 2 ½ years imprisonment, when allegedly no offence was committed. The decision of the Magistrate was over-turned by the High Court on appeal.

[2] However, by the time the appeal was heard, the plaintiff had served the term of imprisonment. As a result of the imprisonment the plaintiff alleges to have suffered acute hypertension and developed other illnesses.

[4] The application before me is a Summons to strike-out the action under Order 18, rule 18(1) of the High Court Rules 1988 on the grounds that:

[6] The plaintiff was charged with two counts of Larceny contrary to S. 262 of the Penal Code Act (Cap 17). The charges were as follows:-

MATAIASI CURUSESE (With three others) on the 11^th day of March, 1994 at Samabula in the Central Division, stole a care Reg. No. Ck 340 valued at $55, 000,00 the property of Mehmoob Raza s/o Tazim Raza.

MATAIASI CURUSESE (With three others) on the 11^th day of March, 1994 at Samabula in the Central Division stole diesel valued at $37.82 the property of SHYNCO SERVICE STATION."

[7] On 16^th March, 1994, the plaintiff appeared at the Suva Magistrates Court as an accused. He pleaded guilty to the charges as they appeared on the charge statement. Thereafter the Magistrate sentenced the accused to 2½ years of imprisonment. Subsequently, he appealed to the High Court. Although the appeal was struck-out for want of prosecution, His Lordship, Mr Justice Townsley made some pertinent remarks (obiter) which perhaps resulted in the filing of this action. In a written judgement delivered on 26^th May, 1997, at page 2 His Lordship said:-

"The appellant could not be guilty of any offence, as there is no offence in Fiji of riding in vehicle knowing it to have been unlawfully obtained."

"The appellant was therefore sentenced to 2½ years for an offence he never committed on the facts before the Magistrate."

[8] On the next page, His Lordship stated, "as a matter of interest, the Magistrate no where recorded that he convicted the appellant."

"Can there be any greater violation of the constitutional right of the citizen than this? It paints a sorry picture indeed of the situation in the lower courts in Fiji."

[10] The general principles governing summary dismissal of cases is well settled. It is a jurisdiction which must be exercised with great circumspection, so as not to deprive a litigant to have a day in a Court. For the purposes of the present application, in my view the approach adopted by the NZ Court of Appeal in Lucas & Sons (Nelson Mail) -v- O/Brien [1978] 2 NZLR 289, is apposite. Their Lordships stated:-

"Held: The court must exercise its... jurisdiction to strike out pleadings sparingly and with great care to ensure that a plaintiff was not improperly deprived of the opportunity for a trial of his case. However, that did not mean that the jurisdiction was reserved for the plain and obvious case; it could be exercised even when extensive argument was necessary to demonstrate that the plaintiff's case was so clearly untenable that it could not possibly succeed." (emphasis added)

[11] Firstly, I note that the Magistrate is not joined as a party to this proceeding despite the primary allegation is levelled against him. Secondly, is the issue of judicial immunity. It is trite law that the common law does not recognise a cause of action emanating from a custodial sentence overturned by an appellate Court. The position remains the same even if part of or the entire sentence is served before it is reversed.

[12] Without labouring too much into the law, perhaps, the answer to the issue before me is provided in a comprehensive judgment of Fatiaki J in Litiwai Setevano -v- Attorney General Suva High Court Civil Action No. 119/1995 (21/6/1995). In that case, the plaintiff sought damages against the State as a result of a conviction and sentence imposed by the High Court which later was reversed by the Court of Appeal. Setevano was tried before a judge and assessors. At the conclusion of the trial the assessors returned an unanimous verdict of "not guilty." The Learned Judge over-ruled the assessors' verdict and convicted the plaintiff for manslaughter. He appealed to the Court of Appeal. By the time the appeal was heard, Setevano had served 674 days in prison.

[13] On release from prison, Setevano proceeded with a civil claim. Like in the present action it was met with an Order 18, rule 18 application.

[14] After reviewing the jurisdiction and powers of a judge under S. 299 of Penal Code to over-rule the verdict reached by the assessors, at page 7 of the judgment, His Lordship, Mr Justice Fatiaki stated:-

"From the foregoing it is patently clear that the learned trial judge in the criminal trial of the plaintiff had both the jurisdiction and the power to disagree with the assessor's opinions and in doing so, I am satisfied that he was acting within his judicial powers and jurisdiction, and is therefore, absolutely immune from civil proceedings".

"The fact that the learned trial judge was subsequently held by the Court of Appeal in Criminal Appeal No: 14 of 1989, to have misdirected himself in the exercise of his statutory power to differ from the opinions of the assessors does not, under any conceivable circumstance, give rise to a 'cause-of-action' sufficient to support or maintain 'a civil proceeding against the state.'" (emphasis added)

[16] Pursuant to S. 206(1), of Criminal Procedure Code, "the substance of the charge or complaint shall be stated to the accused person by the Court, and he shall be asked whether he admits or denies the truth of the charge." In this case, the charges were put to the plaintiff (accused), to which he pleaded guilty. When an accused pleads guilty, under S 206(2) of the Criminal Procedure Code, the judicial officer must record "as nearly as possible the words used by him, and pass sentence upon or make an order against him unless there shall appear to be insufficient cause to the contrary."

[17] Here the plaintiff (accused) pleaded guilty to the charge. The plaintiff is accused No. 4. To that end the Magistrate's Court Record is self explanatory:-

For Prosecution:
Accused 1:
Accused 2:
Accused 3:
Accused 4:

DPO J. Khan
Present
Present
Present
Present

Count 1 -	Accused 1 Accused 2 Accused 3 *Accused 4*	Guilty Guilty Guilty *Guilty*
Court 2 -	Accused 1 Accused 2 Accused 3 *Accused 4*	Guilty Guilty Guilty Guilty"

[18] Not only that, after the prosecutor read out the facts of the case the plaintiff admitted to the same. As stated in Magistrate's Court Record, the Learned Magistrate did what he was required to do under the Criminal Procedure Code.

[19] In addition, it is of significance that the Learned Magistrate remanded the plaintiff and other co-accused after they pleaded guilty on 16^th March, 1994. They were sentenced after a lapse of 14 days on 30^th March, 1994. What it shows is that if the plaintiff had a defence, or the plea was equivocal he could have applied to have the guilty plea vacated; R -v- Iro [1966] 12 FLR 104. But he chose not to do so. It was only in the Petition of Appeal, filed on 26^th October, 1994 the Plaintiff argued that he did not steal the car or petrol. No mention of this was made in the mitigation, which he chose to do on behalf of all the co-offenders.

[20] Be that as it may, I cannot disregard the fact that the conviction is set aside by Townsley J. These facts give rise to the question as to; "whether in over turning the conviction or sentence of a lower Court by the appellate court, it gives rise to a civil suit by an accused?

[21] In my view, not. The answer is provided in His Lordship Mr Justice Fatiaki's judgment in Setevano -v- Attorney General (Supra) to which I have already referred to. On this ground alone, this action ought to be struck-out as it discloses no reasonable cause of action despite the reversal of the judgment of the Magistrate.

[22] Ms Karan, in the written submissions stated that no action can be filed based on the facts of this case by virtue of S. 3(5) of the State Proceedings Act (Cap 24), which provides:-

"(5) 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"

[23] A specific protection is accorded to the Magistrates as well as the persons executing orders of the Court under S. 65 of the Magistrates Court Act. It states:-

"(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.

(2) 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.

[24] In Re McC [1985] 1 AC 528 the Magistrate passed a custodial sentence on a minor without complying with a statutory provision which required him to inform the offender of the right to Legal Aid. In the House of Lords Lord Templeman at 558 aptly said:-

"If in the course of a trial which a Magistrate is empowered to undertake, the Magistrate misbehaves or does not accord the accused a fair trial, or is guilty of some other breach of the principles of natural justice or reaches a result which is initiated by any error of fact or law, the decision may be quashed but the magistrate acting as such acts within jurisdiction."

[25] This applies on fours to the facts of the present case. I am saying especially in view of the obiter comments of His Lordship Mr Justice Townsley.

[26] His Lordship, Mr Justice Saunders in striking out the Statement of Claim for want of a cause of action in a similar situation as the present one in Mahesh Prasad -v- Surendra Prasad and Anor., Lautoka High Court Civil Action No. 330/91 said:-

"This means that ... a resident magistrate, cannot be sued in any civil court, if, at the time he acts, or orders an act to be done, in the discharge of his judicial duty, he believes himself to have jurisdiction to do or to order the act complained of, whether he has jurisdiction in fact, or not."

[27] In paragraph 4 of the Statement of Claim, the plaintiff pleads "that as a result of the Magistrate's failure and/or neglecting to perform his duty rightfully, the plaintiff was wrongfully imprisoned and deprived of his liberty for two years and six months."

[28] The plaintiff's first hurdle is going past S. 65(1) of the Magistrate's Court Act. What S. 65(1) stipulates is that only where a Magistrate does not exercise his/her jurisdiction bona fide, a civil suit may succeed. Save for that, no cause of action arises no matter how negligently the power is exercised. In that regard the Statute is plain. Thus on the pleadings alone, no cause of action lies against a Magistrate in negligence.

[29] Secondly, save for any mala-fide conduct, in common law a Magistrate is immuned from any civil suit. For the rationale of this, I pay a special tribute to the words of wisdom spoken by Lord Denning in Sirrors -v- Moore [1975] 1 QB 118 as follows:-

"In this new age I would take my stand on this: as a matter of principle the judges of superior courts have no greater claim to immunity than the judges of the lower courts. Every judge of the courts of this land - from the highest to the lowest - should be protected to the same degree, and liable to the same degree. If the reason underlying this immunity is to ensure "that they may be free in thought and independent in judgment," it applies to every judge, whatever his rank. Each should be protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn the pages of his books with trembling fingers, asking himself: "If I do this, shall I be liable in damages?" So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in fact. He may be ignorant in law. What he does may be outside his jurisdiction - in fact or in law - so long as he honestly believes it to be within his jurisdiction, he should not be liable. He honestly entertains this belief, nothing else will make him liable. He is not to be plagued with allegations of malice or ill-will or bias or anything of the kind. Actions based on such allegations have been struck out and will continue to be struck out. Nothing will make him liable except it be shown that he was not acting judicially, knowing that he had no jurisdiction to do it. This principle should cover the justices of the peace also. They should no longer be subject to "strokes of the rodde, or spur." Aided by their clerks, they do their work with the highest degree of responsibility and competence - to the satisfaction of the entire community. They should have the same protection as the other judges"

[30] At this juncture I may also add the remarks of Kirby J on this point in Rajski -v- Powell and Anor. [1987]11 NSWLR 52, where His Honour said:-

"It is a fundamental principle of our law that a judge of a superior court is immuned from civil liability for acts done in the exercise of his judicial function or capacity. Such immunity rests, as it has been said, upon considerations of public policy. Its object is not to protect judges as individuals but to protect the interests of society. The purpose of the rule is to preserve the integrity, independence and resolve of the judiciary and to ensure that justice may be administered by such judges in the courts, independently and on the basis of their unbiased opinion not influenced by any apprehension of personal consequences." (emphasis added)

[31] Having considered the nature of the allegations, I am satisfied that the plaintiff action is devoid of any merits in common law as well as under the Magistrate's Court Act against the Magistrate.

[32] The cause of action against the Commissioner of Prison is pleaded in paragraphs 10 and 12 of the Statement of Claim. He claims "damages for loss of liberty for 2½ years wrongful imprisonment in the sum of $250,000-00." Does this constitute a cause of action?

[33] Firstly, pursuant to S 65(2) of the Magistrates Court Act any such action is barred as long as the act was undertaken pursuant to an order of the Court, which s/he is "bound to execute if within the jurisdiction of the person issuing the same." S 65(2) provides:-

"(2) 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."

This provision extends the statutory protection to person executing a warrant whether defective or invalid but is of a kind which under the circumstances was within the jurisdiction of the court to issue: Simpson -v- A-G [Baigent's Case] [1994] 3 NZLR 667 at 716 (CA). In the case before me the question of jurisdiction does not arise.

[34] Secondly, immunity attaches to the Prison Officers under the former Prisons Services Act, that is when the alleged cause of action purportedly arose. Since then the Act is repealed and replaced by Prisons and Corrections Act 2006. It provides:-

"25.-(1) Where the defence to any suit instituted against an officer of the Prisons Service is that the act complained of was done in obedience to a warrant purporting to be issued by a judge, magistrate or justice of the peace, the court shall, upon production of the warrant containing the signature of the judge, magistrate or justice of the peace, and upon proof that the act complained of was done in obedience to such warrant, enter judgment in favour of such officer of the Prisons Service.

(2) No proof of the signature of such judge, magistrate or justice of the peace shall be required unless the court has reason to doubt the genuineness thereof, and where such signature is proved not to be genuine, judgment shall nevertheless be given in favour of such officer if it be proved that, at the time when the act complained of was committed, he believed, on reasonable grounds, that such signature was genuine."

[35] The English Court of Appeal in Hendersen - v- Preston [1888] UKLawRpKQB 148; [1888] 21 QBD 362, in interpreting in a similar provision as to ours held that as long as the Governor of Prisons acted within the four corners of a warrant s/he shall be immuned from any subsequent civil suit for false imprisonment. Lindley LJ at page 366 of the report stated:-

"All that one has to do is to read the warrant. What is a governor of a goal who receives such a warrant to do, except to obey it? It is perfectly valid and correct, and is authorized by the Act of Parliament, and issued by persons who have jurisdiction to issue it. It appears to me that the governor by obeying that warrant has simply done his duty, and the warrant protects him and is an answer to the action." (emphasis added)

[36] There is no allegation made as to the Prison Authority acting outside the four corners of the warrant.

[37] Thirdly, S. 3(5) of the State Proceedings Act (Cap 24) makes it impermissible to file any action against the State for any act done in due execution of any judicial function or in connection with the execution of any orders of the court.

[38] For the foregoing reasons, no reasonable cause of action is disclosed against the Prison officers or the State. As such the claim against the Prison Officers and State is also dismissed.

[39] I uphold the submissions of Ms Karan. The Statement of Claim discloses no reasonable cause of action as such it is struck-out. I conclude with an extract from the judgment of His Lordship Mr Justice Fatiaki in Mehboob Raza -v- Jinadasa Ilangasinghe, Suva Court C/A No. 412/1998, where His Lordship at page 11 of the judgment said:-

"It is axiomatic that the termination of court proceedings in a party's favour does not inexorably give rise to a claim or cause of action for 'malicious prosecution' if this were not so, the courts would be inundated with civil claims for every criminal prosecution which ended with the acquittal of an accused person or where a conviction was subsequently quashed on appeal. A fortiori where the quashing is ordered in a judicial review proceeding and not in an appeal where the merits (as opposed to the process) of the decision is under consideration."

[40] The action is dismissed. The defendant is entitled to costs which I summarily assess to $350-00.

High Court of Fiji

Curusese v Attorney General of Fiji [2008] FJHC 373; HBC 190.1999 (19 December 2008)