IN THE HIGH COURT OF FIJI ISLANDS
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC0194 of 2001L

BETWEEN:

RAJESHWAR SINGH
(Plaintiff)

AND:

PENAIA SAMUSAMUVODRE & ATTORNEY-GENERAL
(First Defendant)

Before: Master Udit

Counsel: Mr Igbal Khan for the Plaintiff/Respondent
Mr. Turaga for the 1st Defendant/Applicant

Date of Hearing: 16th October, 2008
Date of Decision: 19th December, 2008

DECISION

(Striking-Out - Judicial Immunity - defamation)
(Striking-out - vicarious liability of State - for acts or omission of judicial office)
(Judicial Immunity - Extends to Judges, Master, Magistrates, Registrar, etc.)

Introduction

[1] Rather belatedly, but appropriately, the defendants filed a summons under O. 18 rule 18(1)(a) inter-alia seeking an order that this action be dismissed for want of a reasonable cause of action. As prohibited by the O. 18, rule 18(2), no affidavit is filed in support of the application, and rightly so.

[2] Mr Khan, who appears for the plaintiff, vigorously opposes to what I classify as a relatively straight forward application.

Action

[3] On 5th July, 2001, the plaintiff commenced this action by a writ of summons. The defendants are Mr Penaia Samusamuvodre, and Attorney General. The first defendant, Mr Penaia Samusamuvodre at all material times was a Resident Magistrate based at the Lautoka Magistrates Court. He has now retired. The Attorney General is sued on the grounds that it is "under whose direction and responsibility" is the First defendant carrying out the Judicial functions.

[4] On 1st June, 2001 the plaintiff appeared before the Learned Magistrate at the Lautoka Magistrates Court charged with an offence of annoying female contrary to S154(4) of the Penal Code (Cap 17). The particulars of offence provided were as follows:-

"Rajeshwar Singh son of Suruj Bali on the 21st day of January, 2001, at Lautoka in the Western Division with intent to insult the modesty of Laleshni Nath by touching her thighs, intending that the said action to be seen by the said Laleshni Nath Sharma."

[5] From the pleadings, it is apparent that when the plaintiff initially appeared in Court, he was granted bail on certain conditions. Indubitably he breached the bail condition(s). Subsequently, he was arrested and produced before the Court. What was the nature of the condition and its breach is not pleaded. Shortcomings in pleadings has too often plagued the inadequacies of civil proceeding. Recently, in the New India Assurance Company Ltd -v- FDB & Brightspot Fashions Ltd, Civil Appeal No. ABU0075.2007, the Court of Appeal at page 7 para 18 re-emphasised the need for pleadings in civil cases as follows:-

"Pleadings in civil cases are not mere technicalities. They are fundamental to the administration of justice in relation to civil causes. They set out the position of the parties. They define the scope of the litigation. Pleadings identify with precision who is making the claim and who is said to be liable. While modern reforms of the rules of civil procedure have progressively alleviated some (but by no means all) of the harshness of the English civil law. Now there is a good deal of flexibility provided through amendment of pleadings and the addition, substitution and removal of parties and other matters. Nevertheless, at the core of the operating of this important aspect of the administration of justice is the requirement of something in writing."
(emphasis added)

[6] The Learned Magistrate took the breach of the bail condition(s) as serious and remanded the plaintiff in custody for fourteen days. On behalf of the plaintiff, it is not argued that the plaintiff did not breach the bail condition(s), but that he was not given the opportunity to explain the "...reason for breaching the bail condition." (see para 5 of the Statement of Claim).

[7] Pursuant to the order, the plaintiff was remanded in custody for fourteen days at Natabua Prison. An application for bail was made for the release of the plaintiff on 8th June, 2001. On 11th June, 2001, the Learned Magistrate dismissed the application and further remanded the plaintiff in custody until 15th June, 2001.

[8] In Paragraph 9 of the Statement of Claim, the plaintiff claims that the Learned Magistrate preferred the evidence of the Investigating Officer to that of the plaintiff. For that reason, he criticises the decision of the Learned Magistrate. An assertion is made that the Learned Magistrate's order remanding the plaintiff was disproportionate to the severity of the nature of the breach. Further the First defendant acted wrongfully and without any jurisdiction.

[9] In addition, the Learned Magistrate acted with malice. No particulars are given. Such particulars are essential as any valid claim for malice requires both:-

(i) any action taken was actuated by malice or improper motive;

(ii) there was no reasonable or proper cause to act in a particular manner.

Reference is made to Glinski -v- Mclver [1962] AC 726 at 759 per (Lord Devlin.) A fortiori, the pleading point made earlier applies to this allegation as well.

[10] As a result of the order of the Learned Magistrate, it is alleged that the plaintiff was "wrongfully imprisoned and thereby he suffered humiliation and distress and in addition he was put to inconvenience and expense in making further application for his release, as such suffered loss and damages" (see paragraph 12)

[11] Before considering the substantive issue, there are two points which can perhaps be dealt with briefly.

Wrongful Imprisonment

[12] Firstly the allegation of "wrongful imprisonment." Indubitably, the plaintiff was remanded in custody by an order by the Court. There was no appeal nor a fresh application for bail made in the High Court to review the decision of the Magistrate's pursuant to S.108(3) of the Criminal Procedure Code (then was applicable) or now S. 30(3) of the Bail Act 2002, which at that point in time was Bail Decree 2000. The Bail Decree was impliedly held to be unconstitutional after the judgment of the Court of Appeal in Republic of Fiji -v- Chandrika Prasad [2001] FLR. That was the reason for the Parliament to enact Bail Act 2002. As such, the decision of the Magistrate stands un-tampered with. Logic then dictates that the imprisonment cannot be unlawful.

Humiliation

[13] Secondly, is the issue of "humiliation." Undoubtedly, when a person is charged, tried convicted and sentenced he goes through humiliation. I may add, in many cases s/he is the author of his/her demise. But, judicial officer cannot be sued for any humiliation or ridicule as a consequence of a Court proceeding. It equally applies if it occurs in course of the execution of the duties of the judicial officer. "The words which he speaks are protected by an absolute privilege"; Sirros -v- Moore and others [1975] QB 118 at 132 per Lord Denning. There is an absolute immunity from a defamation suit against a judge, witness, counsel and alike. Pigott CB in Kenneddy -v- Hillard 10 Ir C.L. Rep. 195. At 209, it is aptly stated:-

"I take this to be a rule of law, not founded (as is the protection in other cases of privileged statements) on the absence of malice in the party sued, but founded on public policy, which requires that a judge, in dealing with the matter before him, a party in preferring or resisting a legal proceeding, and a witness in giving evidence, oral or written, in a court of justice, shall do so with his mind uninfluenced by the fear of an action for defamation or a prosecution for libel."
(emphasis added)

[14] Thus "neither party, witness, counsel, jury or judge can be put to answer civilly or criminally, for words spoken in office" per Lord Mansfield in Rex -v- Skinner Lofft 55. The rationale extends to judges, witness, parties and counsel actually present in Court; Munster -v- Lamb [1883] 11 QBD 588 at 607. In Silcott v Comr of Police of the Metropolis (1996) 8 Admin LR 633 at 637, Simon Brown LJ said:

"The public policy purposes underlying the immunity are essentially twofold. First, per Fry LJ in Munster -v- Lamb [1883] 11 QBD 588: 'to protect persons acting bona fide, who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions.' Second, as Lord Wilberforce said in Roy -v- Prior [1971] AC 470, 480: 'to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again...' "
(emphasis added)

[15] A Magistrate has the same protection that is accorded to a Judge. In Law -v- Llewellyn [1906] KB 487, Romer LJ, referring to Munster -v- Lamb 11 QBD and Hodson -v- Pare [1889] 1 KB 487 at 491 said:-

"Both these cases are to the same effect, and show that a Magistrate is a "Judge" within the meaning of rule that defamatory."

[16] Master of the High Court as well as the Registrar is protected by the principle of judicial immunity in the same way as a judge of the High or Appellate Courts. Fitzgerald JA in Wentworth v Wentworth & Ors [2000] NSWCA 350 expressly stated that:

"If judicial immunity is afforded to a judge in respect of his or her exercise of the court's power and jurisdiction, there is no rational justification for denying the same immunity to a master or a registrar when he or she performs judicial functions in the exercise of the court's jurisdiction and powers. The rationale behind the doctrine of judicial immunity is equally applicable to Judges and court officers. See 4 Halsbury's Law of England, vol. 1, para. 206; Najjar 25 NSWLR 224, 249 (Clarke JA). It is the nature of the function being performed and the connection of that function with the judicial process which determines whether or not immunity attaches.
(emphasis added)

[17] Returning to the case, S. 65(1) of the Magistrates Court Act (Cap 12) is "a complete defence to" such a claim; Mehboob Raza -v- Jinadasa Ilangasinghe Suva High Court Civil Action No. 412/1998 at page 12 per Fatiaki J. His Lordship stated:-

"It will be seen at once that a magistrate's statutory immunity from suit in this country differs in material respects from that conferred under the equivalent United Kingdom and New Zealand legislations, and extends so long as he or she is '... acting judicial ... in the discharge of his judicial duty ..' irrespective of 'whether or not (such action or order) is within the limits of his jurisdiction' and so long as he honestly 'believed himself to have jurisdiction' to do or to order what he did."
(underlining is mine)

[18] Thus it is trite law that a judicial officer is immune from any suit even though it is alleged or suggested that the impertinent observations or comments of a Judicial Officer during and in the course of executing judicial duties were made without reasonable or probable cause or malice. Such a suit includes a defamation action.

[19] It follows the allegation and damages based on humiliation falls on the face of it, even if the Learned Magistrate may have made any remarks or dealt with some sternness with the case by ordering that he be remanded in custody.

Judicial Immunity

[20] Returning to the primary issue, which is judicial immunity. The general principle is that a Magistrate is immune from being sued in a civil suit for any act or omission in the due execution of his/her judicial duty. Lord Denning in Sirros -v- Morre and others [1975] QB 118 at 132 aptly described this immunity as follows:-

"Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to..."
(emphasis added)

[21] As to the rationale of the same His Lordship said:-

"The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear. It was well stated by Lord Tenterden C.J. in Garnett -v- Ferrand (1827) 6 B. &. C. 611, 625:

"This freedom from action and question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actins, they may be free in thought and independent in judgment, as all who are to administer justice ought to be." Those words apply not only to judges of the superior courts, but to judges of all ranks, high or low."

[22] Lord Denning with whom Omrod LJ concurred, held that "Those words apply not only to judges of superior courts, but to judges of all ranks, high or low." (see p. 132)

[23] In Re McC [1985] 1 AC 528 at 558, Lord Templeman in respect of judicial immunity of Magistrates 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 or some other breach of the principles of natural justice or reaches a result which is vitiated by any error of fact or law, the decision may be quashed by the Magistrate Acts within jurisdiction."

[24] The New Zealand Court of Appeal in Nakhla v. McCarthy (1978) N.Z.L.R. 291 at p. 293. The scope and rationale of the principle of judicial immunity clearly and succinctly set out in the following passage in the judgment of, 294:

"An action complaining of the judicial work of a superior court judge is probably unique in New Zealand. In the United Kingdom the number of recorded attempts to bring a similar action during the past 150 years or more can be counted on the fingers of one hand. None has succeeded.

It is not necessary to search for the reason. It lies in the right of men and women to feel that when discharging his judicial responsibilities a judge will have no more reason to be affected by fear than he will allow himself to be subjected to influences of favour. Thus he is surrounded with an absolute immunity from civil proceedings for acts done or words spoken in the exercise of his judicial office. But that immunity is in no sense a private right which might be regarded as having been conferred upon him and which he then might be said to enjoy. He is merely the repository of a public right which is designed to ensure that the administration of justice will be untrammelled by the collateral attacks of disappointed or disaffected litigants. That simple concept is gladly accepted, we believe, by the citizen and lawyer alike. And its strength extends to preventing civil proceedings against the judge in respect of his exercise of jurisdiction even though he may act with gross carelessness or be moved by reasons of actual malice or even hatred."
(emphasis added)

[25] The law in this country to that end is also settled. There are many decided cases on this point. I have no intention to list them all. I prefer the statement of His Lordship Mr Justice Saunders in Mahesh Prasad -v- Surendra Prasad & Anor Lautoka Civil Action No. 330/1991, where at page 2 of judgment, he held:-

"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."
(emphasis added)

[26] Before I conclude on this point, it is perhaps appropriate to refer to a recent decision of the High Court of England and Wales in Anthony Dominique Hind -v- Liverpool County Court & Ors. [2008] EWHC 655. His Lordship Mr Justice Akenlead comprehensively summarised the underlying public policy justification for granting judicial immunity as follows:-

"(i) judges in this country are chosen on the basis, amongst others, of their integrity;

(ii) judges should be permitted to act, in their capacity as judges, without fear of being sued for their judicial acts; an apprehension or fear that he or she might be sued could itself give rise to assertions of bias; the independence of the judiciary is vital in the administration of justice;

(iii) there is an appeal process which allows wrong, unfair or biased decisions to be overturned; that process is tried and tested. Whilst no court process can guarantee perfection in every case, serious injustice is almost always put right on appeal. In appropriate cases, new evidence can be put before the appellate court and indeed first instance decisions can be reviewed and set aside on the basis of new evidence;

(iv) statistically, there are exceptionally few (if any) reported cases of judges behaving with malice or in a corrupt manner. Such cases as there are of judges behaving unfairly are those where invariably the appellate courts have found this to have occurred and the unfairness is addressed on appeal;

(v) there are disciplinary procedures for judges who misbehave in one way or another, albeit that few judges have had charges established against them."

[27] Thus, it is trite law that a judicial officer is immune from personal liability in civil law, in respect of any act done in his/her judicial capacity. All the Officer is required to do is to act bona fide at all times in due execution of his/her duties. The immunity still extends, even though he may be "mistaken in that belief" or "may not have jurisdiction at all." It matters not even if s/he makes a mistake of law or fact. All s/he has to do is to act in good faith.

Application

[28] Turning to the facts of this case, there is no dispute that the Magistrate was acting within his jurisdiction. Magistrates' Court is a creature of statute. Magistrates' Court Act, empowers the Magistrate to hear criminal cases. More so, relevant to the fact this case, S.17 of Magistrates Court Act (Cap 24) provides that:-

"In exercise of their Criminal Jurisdiction Magistrates have all the powers and jurisdiction conferred on them by the Criminal Procedure Code, this Act, or any other law for the time being in force."
(emphasis added)

[29] Presently, for bail purposes other pertinent Statute is the Bail Act 2002, which incidentally also vests the Magistrate with the power to consider applications for bail.

[30] In the pleadings, there is nothing which depicts any mala-fide action by the Learned Magistrate. Needless to mention, the Learned Magistrate acted as provided for by the law and jurisdiction reposed to him. He may or may not have reached the correct decision, but that does not give rise to reasonable cause of action. Accordingly the action against the First Defendant is dismissed.

Attorney-General

[31] Next, Mr Khan submitted that the plaintiff's right to liberty was denied. It is a breach of the plaintiff's Constitutional right. This submission is adequately answered by Lord Diplock in Maharaj -v – Attorney-General of Trinidad and Tobago (No. 2) [1979] AC 385 at 399 as follows :-

"In the first place, no human right or fundamental freedom recognised by Chapter 1 of the Constitution is contravened by a judgment or order that is wrong and liable to be set aside on appeal for an error of fact or substantive law, even where the error has resulted in a person's serving a sentence of imprisonment. The remedy for errors of these kinds is to appeal to a higher court. Where there is no higher court to appeal to then none can say that there was error. The fundamental human right is not to a legal system that is infallible but to one that is fair."
(underlining and emphasis is mine)

[32] Accordingly, I see no merit in Mr Khan's submission.

Vicarious Liability

[33] Lastly, is the issue of vicarious liability. In paragraph 2 of the Statement of Claim the plaintiff although with obscurity alleges the State is vicariously liable for the acts of judicial officer in due execution of his/her judicial function.

[34] Firstly, such a submission is oblivious to S.3(5) of the State Proceedings Act (Cap 35). The provision expressly negates any such liability. It states:-

"(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.".

[35] Secondly Lord Diplock in Maharaj -v- Attorney General of Trinidad & Tobago (Supra) at 394 in respect of the claim in tort said :-

"To this extent the application was misconceived. The Crown was not vicariously liable in tort for anything done by Maharaj J. while discharging or purporting to discharge any responsibilities of a judicial nature vested in him; nor for anything done by the police or prison officers who arrested and detained the appellant while discharging responsibilities which they had in execution of judicial process."
(emphasis added)

[36] The rationale in above extract is patently obvious. Mr Turaga very helpfully also referred me to Rajski -v- Powell and Another [1987] 11 NSWLR 520 in which His Lordship, Kirby P said:-

"(a) Essential to the notion of vicarious responsibility is the power to direct and control. Such power is absent in the relationship between the Attorney-General and judicial officers such as the first claimant. Indeed, it is fundamental to our arrangements for the administration of justice that no such power should exist. Accordingly, the theoretical basis for rendering a law minister responsible for the acts of a judicial officer, simply does not arise from the relationship between them.

(b) judicial officer enjoy an office under the Crown which provides the office holder an independent source of power, whether resting upon the prerogative, common law or statute."
(Emphasis added)

[37] As a general proposition of law, S. 3(5), read in conjunction with these cases makes it abundantly plain that the State is not vicariously liable for the acts or omissions of a judicial officer for any action s/he undertakes in due execution of his/her judicial function. The proposition is further fortified by the fact that a judicial officer is immuned from being sued. Thus the issue of vicarious liability does not arise at all.

[38] Before concluding on this point, paragraph 2 of the statement of claim states that a Magistrate acts under the direction of the Attorney General. That is fundamentally flawed. The doctrine of Separation of Powers aptly answers the claim. His Lordship, Mr Justice Kirby in Rajeski -v- Powell and Another (Supra) at 530, on this point had this to say:-

"The errors of this assumption are manifest. It is fundamental to our constitutional arrangement that judges (and now magistrates) are completely independent of the Executive Government, including the Attorney-General. In the statement of claim, it is asserted that the first claimant was "the judicial officer of the second" claimant. That assertion represents a serious misunderstanding of the relationship between them. True it is the Attorney General of the day normally recommends to the executive council (after approval by the Cabinet) the appointment of judicial officers. True also, the Attorney-General has certain administrative responsibilities in respect of the courts and judicial officers. But the independence of the judiciary, which is such an abiding future of our constitutional arrangements, is fundamentally inconsistent with the relationship between the claimants asserted by the opponent in his statement of claim."

Conclusion

[39] For the foregoing reasons, I will allow the defendants application to strike-out the action. Accordingly the action is struck-out with costs summarily assessed at $350.00

J.J. Udit
Master