IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO.: HBC 472 OF 2004

BETWEEN:

WAISEA KALOUMAIRA
(Plaintiff)

AND:

FIJI POLICE FORCE
(First Defendant)

COMMISSIONER OF POLICE
(Second Defendant)

MINISTER FOR HOME AFFAIRS
(Third Defendant)

ATTORNEY GENERAL OF FIJI
(Fourth Defendant)

Mr. R.P. Singh for Plaintiff
Mr. S. Raramasi for Defendants

Date of Hearing: 21st August 2008
Date of Judgment: 31st December 2008

JUDGMENT

BACKGROUND:

Parties:

[1] This is an unusual case. The plaintiff is suing the defendants on his own behalf and on behalf of 37 others. The first defendant is sued as a government department. The second defendant is sued in his capacity as the Head of the Fiji Police Force. The third defendant is sued as the Minister responsible for the affairs of the police. The fourth defendant is sued as the legal representative of the State pursuant to Section 12(2) of the State Proceedings Act Cap 24.

Facts:

[2] The plaintiff's claim is in false imprisonment. The plaintiffs had gone from Suva on a ship to Lau Group to collect bêche-de-mer. They had taken with them two boats, diving equipment and other gear. The trip was to last approximately 20 days. The ship dropped the plaintiffs, the two boats and fishing equipment at an uninhabited island in the Lau Group, namely the island of Yagasa. They were seen by a Fisheries Officer diving and collecting bêche-de-mer. He verified their licence and concluded that the plaintiffs did not have a licence to do commercial fishing. He alerted the police at Tubou, Lakeba, Lau who confiscated the two boats and fishing equipment. Waisea Kaloumaira with one other person (not one of the plaintiffs) was later charged under the Fisheries Act and convicted for the offence of taking fish without licence.

Claim:

[3] This action has nothing to do with the Fisheries Act. The plaintiff's complaint here is that in the process of investigating the offence under the Fisheries Act, the police detained them in Lau at the islands of Lakeba, Moce and Yagasa beyond the period of 48 hours. Detention beyond 48 hours they say was against their will and unconstitutional and therefore unlawful. They seek a declaration that their detention was unlawful and seek damages.

Defence:

[4] The defendants stated in their defence that the plaintiffs were illegally diving off Yagasa Island in the Lau Group and that the police were justified in detaining them to carry out the investigations into the breaches of the Fisheries Act. They added that the permit the plaintiffs used only permitted them to engage in handline fishing and not to use underwater breathing apparatus.

[5] Three persons testified. They were the plaintiff Waisea Kaloumaira, Varasiko Tagivakatini and Inspector Joji Matawai.

Issues:

[6] The plaintiff has outlined four issues in his submissions. These are:

(a) whether the plaintiffs were illegally diving off Yagasa Island in the Lau Group.

(b) whether the police were justified to detaining the plaintiffs to ensure that a thorough investigation into the breaches of the Fisheries Act was conducted.

(c) whether the plaintiffs or any of them were unlawfully imprisoned by the defendant.

(d) If so, what is the quantum of the damages the plaintiff is entitled to?

Issue 1 - Illegal fishing:

[7] This is not the proper place to decide this issue. It is an attempt to reopen what has already been decided by the Magistrate's Court and on appeal to the High Court in HAA 48 of 2006. A certified copy of the records in that appeal was provided to the court. The conviction of Waisea Kaloumaira was upheld on appeal. All the people were using one and same license which belonged to none of the plaintiffs but to a third party.

Issue 2 - Whether the plaintiffs had been arrested by police on 18th September 2003?

Agreed facts:

[8] To consider this issue I shall refer to the agreed facts in the Pre-trial Conference Minutes. I reproduce here paragraphs 10 to 15 of the agreed facts:

"10. On Thursday morning 18th September 2003 at about 11 a.m. whilst the plaintiffs and his party of 37 other divers and the two local Fisheries officers from Moce Island were still on Yagasa Island to have lunch on, three policemen in uniform, who were based on Tubou, Lakeba, Lau and who are members of the first defendant arrived on Yagasa Island and placed the plaintiff and his group under arrest for allegedly taking fish without licence.

11. The plaintiffs were instructed that they were forbidden from leaving Yagasa, Moce and Lakeba islands or returning to Suva until the police investigation into this matter of illegal fishing was complete.

12. After the plaintiffs were instructed not to leave Yagasa, Moce and Lakeba islands, the police returned to Lakeba.

13. The plaintiff and 10 others followed the policemen to Lakeba in the plaintiff's fiberglass boat landing at Tubou.

14. In the meantime, as the two fiberglass boats were seized by Tubou police, there was no other boats on Yagasa Island that the 27 people could use for travel.

15. The 27 divers who were left on Yagasa could not leave Yagasa because there was no boat left for anyone to use."

[9] When the police first visited the plaintiffs they were all on Yagasa Island. According to Kaloumaira, the diving equipment, bêche-de-mer and fuel and two boats the plaintiffs were using were taken by police. He also stated that ten of them were taken by police to Lakeba while the rest were left behind at Yagasa. However he stated one boat was left behind.

[10] He told the court that the ten who were taken to Lakeba were left on the beach. He further told the court that the police made no provision for them to sleep. The villagers he said felt sorry for them and accommodated them. He further told the court that Inspector Matawai told them not to leave the island until police investigations were complete.

[11] Inspector Joji Matawai testified. He told the court that on receipt of complaint of illegal fishing, he directed his officers to attend to the complaint and they seized all fishing equipment. He stated that the officers came back with the exhibits. He also told the court that some men, who I presume were the ten persons Kaloumaira was referring to, also came voluntarily. They were trying to persuade the police to return the equipment but were unsuccessful. He also told the court that he did not tell these persons not to leave Lakeba. He said they were free to move around. He said they were waiting for the boat from Suva. They were not under arrest.

[12] The inspector himself had not gone to Yagasa to seize items so what transpired there and what conversations took place between the plaintiffs and the officers would not be known to him.

Variance between pleadings and evidence:

[13] The case for the defendant as advanced during the trial was at odds with facts as agreed during the pre-trial conference minutes. It also did not agree with what was admitted in defence. This is the first occasion which I have come across where one of the parties has departed in its evidence from what it agreed to. The defendant made arrest a live issue. In defence the defendants admit certain paragraphs of the statement of claim namely paragraph 2 which alleges that 37 persons were detained by Tubou Police on Yagasa Island, Moce Island and Lakeba Island during months of September, October, November, December 2003 and January 2004. Paragraph 16 of the defence admits that the plaintiffs were forbidden from leaving Yagasa, Moce or Lakeba Island or returning to Suva until the police investigations were over.

Amendment to defence not done:

[14] If the defendants wished to make arrest a live issue and therefore put liability in issue, they should have made an application for amendment of defence. This was not done. This would also have entailed withdrawing certain admissions made. Withdrawal of admissions requires an application under Order 27 Rule 2(2) to withdraw the admissions. In the latter event the principles as set out in Gale v Superdrug Stores plc - 1996 3 All ER 468 apply and which held that leave to withdraw admissions ought normally to be granted if the application is made in good faith, raises a triable issue with a reasonable prospect of success and will not prejudice the plaintiff in a manner which cannot be adequately compensated. No application for withdrawal of admissions was made either.

Matawai's allegations:

[15] Inspector Joji Matawai told the court that the ten persons who came to Lakeba came of their own free will. They were trying to get release of seized items from police. He stated that he interviewed Waisea Kaloumaira on 17th October 2003. He stated that he did not detain them at the police station or that he told them that they could not leave Lakeba. He told the court that these persons were free to take a boat or a plane back to Suva. They were stranded because they had no money to return to Suva.

Rule in Browne v. Dunn violated:

[16] These allegations made by Inspector Matawai were not put to the plaintiffs during cross examination and giving them an opportunity to explain as it should have been done. That is the rule of professional practice and fair play: Browne v. Dunn (1894) 6 R 67.

[17] In cross examination he stated that he only learnt of this civil case two days prior to the trial and that no one from the defendants' office had called for station diary. At Lakeba, he stated, one could only hold five persons in the cell. He also told the court that he did not know when the last lot of persons left the islands. He told the court that the plaintiffs were free to go after the interview.

[18] The problem this court is faced with is that the defendants have departed from the agreed facts and the plaintiff made no objection that they should not be allowed to do so.

[19] Generally speaking parties in running their cases are confined within the parameters of their pleadings. However, there are instances where parties stray beyond the pleadings or disregard them and contest the matter and contest them on a wider basis. In Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. - (1916) 22 CLR 490 Isaacs and Rich JJ in a joint judgment at p. 517 stated:

"But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest. There is abundant authority for this, ... see, for instances Nevill v. Fine Art and General Insurance Co. - (1890) AC 68 at p. 76; Browne v. Dunn 6R 67 at p. 75, the relevant passage being quoted fully in Rowe v. Australian United Steam Navigation Co. 9 CLR 1, at 24."

[20] In the present case the plaintiffs have kept the presentation of their case within the confines of their pleadings. They would be unaware that the defendants were going to depart from their defence as even their witnesses were not questioned on the basis of what the defence witness intended to say. So the issues were not fairly fought out as the defendants had breached the rule in Browne v. Dunn. So I cannot apply the concept of "harking back".

Was there Arrest?

[21] In "The Dictionary of English Law" by Earl Jowett states that "to arrest a person is to restrain him of his liberty by some lawful authority". It goes on to say "And if the officer says "I arrest you", and the party acquiesces, or afterwards goes with him, this is a good arrest".

[22] Mr. Kaloumaira and Inspector Matawai have given contradictory evidence regarding arrest. Mr. Kaloumaira stated that the police arrested them for illegally taking fish and they were stopped from leaving Yagasa, Moce or Lakeba until the investigations were complete.

[23] Inspector Matawai's evidence is that those people were not arrested but were free to leave. One of the aims of the fisheries officers and the police would be to prevent continuation of alleged illegal fishing. That could easily be done by seizing the equipment used in the illegal venture and taking the catch. Mr. Kaloumaira told the court that the equipment was kept by the police in the cell. The Tubou Police Station cell had only room for five persons. This would be well known to police. Given the logistics, it is unlikely the police were going to arrest thirty-eight persons. If the police had really arrested 38 persons, then the majority of them that is 28 were unlikely to be left on an uninhabited island without police supervision. However the agreed facts point to the contrary.

[24] Further the ten allegedly taken to Lakeba were left on a beach and according to Kaloumaira free to move around. According to Varasiko Tamudu Tagivakatini the twenty-eight left behind on Yagasa went to Moce after seven days where they worked for persons with plantations and were sheltered in a house on the island. According to Kaloumaira the twenty-eight were shifted to Moce after he visited them and they had no food so he asked the Inspector that they be shifted to Moce. This is indeed very curious situation where a person allegedly in police custody is telling the captors what to do and the police listen to him. But it does show a bit of humanity in police conduct.

[25] Inspector Matawai told the court that ten persons followed the police with the aim of having the equipment released. This equipment consisting of two boats and diving equipment would be of considerable value and also likely to be used on later diving expeditions. Their seizure would effectively paralyse, if not for a long term, then at least temporarily, the company's fishing venture. Mr. Kaloumaira therefore had compelling motive to get the release of equipment. However Mr. Kaloumaira and others may well have reasoned that since they were under arrest, there was no harm in trying to persuade the police to release the items and use their time in custody for fruitful purpose.

Interviews:

[26] The inspector in cross examination admitted that the plaintiffs were free to leave after their interviews.

[27] By interview I understand he meant written interviews. Mr. Kaloumaira was interviewed at Lakeba Police Station on 17th October 2003 - see agreed bundle of documents page 45. So he would be free to leave after that. From the agreed bundle where the interview notes of some of the plaintiffs are included I note that they were interviewed in November 2003 as follows:

Waisea Kaloumaira on 17th October 2003

Jone Uluinaceva on 19th November 2003

Mitieli Veisama on 19th November 2003

Josese Musuka on 19th November 2003

Veresa Ralovawaqa on 14th November 2003

Varasiko Tamudu on 19th November 2003

Taniela Roko on 19th November 2003

Peni Laua on 20th November 2003

Savenaca Lawedrau on 14th November 2003

Lasaro Radrodro on 14th November 2003

Jovilisi Nagatalevu on 19th November 2003

Sainivalati Cola on 20th November 2003

Siri Eparama on 19th November 2003

Malakai Draniatu on 14th November 2003

So only fourteen people were interviewed. The rest were not interviewed by police at any time.

Departure from Lau:

[28] The first to leave Lau was Jovesa Serukalou on 11th October 2003. He left to join the British Army. He was not interviewed. The next two Isoa Radravu and Manueli Tokabobo stowed away on 30th October 2003. They had not been interviewed nor is there any evidence that they were later captured and charged for escaping from lawful custody.

[29] The third lot of six persons left on 8th November 2003. I do not know how they left. This group included Saimoni Kete, Sonny Waicome, Jone Draunibaka, Sainivalati Cola, Duru Solo, Vilimoni Bania. Of these only Sainivalati Cola was interviewed on 20th November 2003 at Suva Central Police Station after he left Lau.

[30] So of the third lot none of them had been interviewed before they left Lau.

[31] The fourth lot to leave was Malakai Draniatu. He was never interviewed. I was told he was admitted to Lakeba Hospital on 6th December 2003.

[32] The fifth group of three Waisea Kaloumaira, Atunaisa Vuiyale and Veresa Ralovowaqa left on 23rd December 2003. Waisea Kaloumaira was interviewed on 17th October and Veresa Ralovowaqa on 14th November. So what were they doing after their interviews had been conducted? Why were they hanging around in Lau I was not told?

[33] The sixth group of just one person Wainitelu Mataisuva who left after 95 days. He was never interviewed. There is no record of his interview.

[34] The last group of twenty left on 30th January 2004 on the fishing vessel Rossie arranged for by the employer. Of the twenty in the group only eight had been interviewed. They were Jone Uluinaceva on 19th November, Mitieli Veisama on 19th November 2003, Varasiko Tamudu on 19th November 2003, Taniela Roko on 19th November 2003, Peni Lava on 20th November 2003, Lasaro Radrodro on 14th November 2003, Jovilisi Nagatalevu on 19th November 2003, and Siri Eparama on 19th November 2003.

[35] Again no explanation was given to me as to why these persons continued to remain in Lau till 30th January 2004 when they had been interviewed by mid November 2003.

[36] Mr. Kaloumaira in his testimony stated that he arranged for a boat to pick them up and that he paid for the boat. This confirms the inspector's explanation that the plaintiffs had continued to remain in Lau because they had no money to return to Suva. Kaloumaira also said they could have caught planes but had no money for fares. I must also not lose sight of the fact that it was the employer who had taken these people to Lau and it was incumbent upon it/him/her to bring them back from Lau.

[37] The defendants submitted that I should not allow the plaintiffs to profit from their own illegal conduct. They rely on the maxim of "ex turpi causa non oritur actio". That doctrine would apply if the plaintiffs were claiming for the loss of their catch which is the result of illegal activity, and claiming damages for seized equipment. They are not doing that. What the plaintiffs are claiming for is the unlawful detention beyond 48 hours.

[38] The defendants further submitted that the plaintiff and his group of persons were not totally restrained and therefore there was no false imprisonment. They submitted that there are no boundaries fixed as the area of confinement and the plaintiffs were free to move around the islands and some of them worked on the plantations of the villagers.

[39] The defendants rely on the authority of Bird v. Jones 115 ER 658 which suggests that to amount to false imprisonment, there must be total obstruction and detention. I am of the view that Bird v. Jones does not assist the defendants. In the present case there were definite boundaries set beyond which the plaintiffs could not move or go. Simply because their area of movement was not surrounded by walls or because it was fairly large area, does not mean there was no imprisonment. The boundaries were defined by the sea surrounding the island and there was restraint imposed by the will of police or power exterior to the plaintiffs.

[40] Having heard the witnesses and looked at the pleadings and agreed facts, I find that one or more of the officers who went to Yagasa told the plaintiffs not to leave the island until the police enquiries were complete. I do not believe Mr. Kaloumaira that the police arrested the nine persons and took them to Lakeba but rather they followed the police with the objective of trying to have valuable equipment released from police custody. The police I am of the view knew that they had limited space at Tubou Police Station cell and therefore would not take these people into custody especially as the cells were used for storing the equipment. Nevertheless I find that these ten were also told that they could not leave Lau until their interviews were done.

[41] This is not a case of usual arrest and detention in a police cell with its confined space. These people were free to move around unsupervised by police. There is absolutely no evidence that the police ever went to check on these people and whether they were present on Yagasa, Moce or Lakeba. Even those who came away to Suva without being interviewed were not arrested or charged for escaping from lawful custody. The restraint on these people was minimal.

[42] However, the police at Lakeba would have known that they could not have presented the plaintiffs before a court no later than 48 hours as required by Section 27(3) (b) of the constitution. The sittings at the island courts especially the Eastern Group are few and irregular. The only practical thing the police could have done was to release the plaintiffs on bail to appear in Suva court instead of holding them for an indefinite date. I have no evidence before me as to whether there were any sittings of the Magistrates Court at Lakeba during September, October or November 2003.

[43] I therefore declare that the plaintiffs' rights under Section 27(3)(b) to be brought before a court within 48 hours or if that is not reasonably possible, as soon as possible thereafter were breached.

[44] In their prayer the plaintiffs have claimed following reliefs. Some are repetitive and special damages not outlined or specified. The reliefs are:

"(i) A Declaration that the detention of the plaintiff and his team by the Tubou police as at paragraph 45 herein and in the proceeding and succeeding paragraphs is unlawful;

(ii) Special damages to be assessed;

(iii) Punitive damages to be assessed accordingly;

(iv) Damages for breaches of rights in relation to Articles 27(3)(b), 27(2), 27(i) and 27(1)(c) of the 1997 Fiji Constitution;

(v) Damages for unlawful imprisonment;

(vi) Damages for failure to provide food and accommodation whilst detained;

(vii) General Damages;

(viii) Interests on any award at the rate of 10 percent;

(ix) Costs on an indemnity basis;

(x) Any other reliefs this Court may deem just"

[45] In their statement of claim at paragraph 63 the plaintiffs had alleged that as a result of unlawful detention that they had lost their wives and families and their marriages got broken up. There is no evidence, not even an iota of evidence, on this aspect. These appear to be unfounded allegations. However that does not detract from the fact that the plaintiffs had been kept away from their families and friends for quite some time.

Damages:

[46] I have no clear evidence as to when the plaintiffs were free to leave Lau Group. Some left without being interviewed and were not re-arrested or charged for escaping. I am also not told as to why others continued to stay at Lau after their interviews. My own conclusion is that they had no money to return to Suva as they would in normal course of business have been picked up after roughly twenty days by the employer. On the other hand there is no evidence from the defendants either that the next of kin or the employer of the plaintiffs was informed of what had happened. In this modern age of telephones that would have been quite easy to do. The police in Suva could have been asked to assist in informing the relatives or next of kin.

[47] The conclusion I reach is that Waisea Kaloumaira would have been free to leave after 17th October 2003 when he was interviewed so his unlawful detention was from 18th September 2003 to 17th October 2003 a period of 30 days. Others were interviewed on 14th November, 19th November and 20th November which would make their unlawful detention period of 57 days, 62 and 63 days.

[48] Mr. Singh in his written submissions drew my attention to a number of cases. The principal case is Sivarosi Raikali v. Attorney General & Commissioner of Police - 45 FLR 313. This case involved wrongful incarceration of the plaintiff for a period of 11 months. He had been serving prisoner on a life sentence but released on compulsory supervision order.

[49] Justice Scott in Raikali expressed the view that damages arising from false imprisonment have the primary purpose of compensating the plaintiff for loss of his liberty and its consequences such as indignity, mental suffering, disgrace, humiliation, loss of reputation or social status and any deleterious physical effects of incarceration. He awarded a sum of $1,000.00 per month as compensation but declined to award exemplary damages. He also pointed out that it was not proper to look at an award made for a short period of incarceration and conducting a multiplication exercise by looking at the length of incarceration in the case before the court.

[50] I agree with the views expressed in Raikali. The circumstances of false imprisonment vary markedly from case to case. The usual cases are of detention in a police cell or in prison unlike the case before me.

[51] Manga v. Attorney General (2000) 2 NZLR 65 was a case of serving prisoner who was detained in prison longer than he should have been for a period of 252 days due to misinterpretation of law by Crown Law Office. He served this extra period of detention in a high security unit spending 23 hours a day in the cell with an hour's recreation outside it.

[52] In Manga there was wrongful imprisonment which was also breach of the New Zealand Bill of Rights, the detention being an arbitrary detention for purposes of Section 22 of the New Zealand Bill of Rights, it concluded that remedies in tort and under the New Zealand Bill of Rights Act were not on the same footing as the breach of the Bill of Rights provision was about vindication of statutory policy which has public dimensions a view which is shared by the Fiji Court of Appeal in The Proceedings Commissioner for Human Rights v. Commissioner of Police & Attorney General – ABU 3 of 2006.

[53] I take the following factors in assessing the damages:

(a) the initial arrest was lawful.

(b) that the plaintiffs were entitled to release after 48 hours or at a time soon thereafter.

(c) the level of restraint on the plaintiffs' movement was minimal.

(d) there was no physical supervision of the plaintiffs by the police.

(e) there is no evidence of any mental distress but I accept that the plaintiffs must have felt anxiety being kept away from their families for an extended period.

(f) that the police could and should have contacted the families of the plaintiffs.

(g) denial of an opportunity for employment.

(h) there was no immediate or subsequent apology by police but rather the police took the position that they had the right to detain.

[54] I take note of the comments of the Court of Appeal in the Proceedings Commissioner that where the breach of Bill of Rights provision is serious, there is no reason why it should not be reflected in the level of the award for compensatory damages.

CONCLUSIONS:

[55] Considering the above factors and also bearing in mind that there was breach of the Bill of Rights provisions I award Compensatory damages of $4,000.00 for the first 30 days and thereafter at the rate of $100.00 a day or $3,000.00 per month. I award no punitive and exemplary damages. As I stated earlier I see no reason why the plaintiffs should not have left after they were interviewed. The cut off date for those who were never interviewed is 20th November 2003 when the last interview was held.

[56] I make following awards:

Waisea Kaloumaira ……………………………...........	$4,000.00	
Joseva Serukalou (21 days) ……………………...........	$3,000.00	
Veresa Ralovowaqa, Savenaca Lawedrau, Lasaro Radrodro and Malakai Draniatu interviewed on 14th November: detention 57 days ……………………..….	

$6,700.00 each	
Jona Uluinaceva, Mitieli Veisama, Josese Musuka, Varasiko Tamudu, Taniela Roko, Jovisili Nagatalevu, and Siri Eparama interviewed on 19th November: detention 62 days ……………………………………..	

$7,200.00 each	
Isoa Radravu and Manueli Tokabobo stowed away 30th October: detention 42 days …………………………...	
$5,200.00 each	
Saimone Kete, Sonny Waicome, Jone Draunabaka, Sainivalati Cola, Duru Solo, Vilimoni Bania left on 8th November: detention 50 days ………………………...	

$6,000.00 each	
I use the cut off date of 20th November for the remaining 17 plaintiffs and therefore each one of them is entitled to damages for detention for period of 63 days …………………………………………………...	

$7,300.00 each	
They are Sailasa Kaibau, Sireli Tawake, Peni Laua, Tuiteci Tuisawau, Tuicolo Moceiseaqaqa, Salimoni Tabua, Etuate Baranisavu, Kilioni Koroi, Wainitelu Mataisuva, Atunaisa Vuiyale, Semi Seganabete, Kolinio Qamea, Rusiate Koroi, Lemeki Saumi, Taitusi Gonedau, Sireli Kubulala, Setareki Rokoyago.
		
The total for all plaintiffs adds to ……………………..	$254,600.00	

Final Orders:

[57] (1) I declare that the detention of the plaintiffs beyond a period of 48 hours by the Tubou Police was in breach of Section 27(3)(b) of the Constitution that is to be brought before a Court no later than 48 hours after arrest.

(2) I order the defendants to pay the plaintiffs the sum of $254,600.00 damages.

(3) I order the defendants to pay costs summarily fixed in the sum of $4,000.00.

[58] Finally, the delay in delivery of this judgment is sincerely regretted.

[Jiten Singh]
JUDGE
At Suva
31st December 2008