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Kingdom of Tonga v Lolohea [2009] TOCA 13; AC 20-2009 (10 July 2009)

IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

AC 20 of 2009

BETWEEN:

KINGDOM OF TONGA
Appellant

AND:

MATEAKI LOLOHEA
Respondent

Coram: Ford P
Burchett J
Salmon J
Moore J

Counsel: Mr. Kefu for the Appellant
Mr. Niu for the Respondent

Date of hearing: 1 July 2009.
Date of judgment: 10 July 2009.

JUDGMENT OF THE COURT

[1] This is an appeal and cross appeal from a judgment of Shuster J.

[2] The Respondent claimed damages against the Crown for wrongful imprisonment for a total of 326 days and for inhumane punishment while a prisoner at Hu’atolitoli prison. The Crown admitted liability and the trial in the Supreme Court related just to quantum.

[3] The amended statement of claim which was filed after the hearing, but before final written submissions were lodged, claimed a total of $260,000.00 for wrongful imprisonment and $20,000 for inhumane punishment. The latter sum was made up of $10,000 for compensation and $10,000 for exemplary damages. No specific sum was claimed for aggravated damages.

[4] The Crown maintained that the daily rate should be $100 as a maximum. It said that the sentence of 61 days served for escaping from prison should not be included, that the amount claimed for inhumane punishment was excessive and that the plaintiff was not entitled to exemplary damages and had not claimed aggravated damages.

[5] A word of explanation is needed in relation to the 61 days period referred to above. It is correct that this was a sentence imposed by a magistrate for escaping from prison. However, on appeal Ford J held that the Plaintiff and another prisoner were entitled to an acquittal on that charge based on the concept of duress of circumstances. He held that the punishment to which they were being subjected at the time, which counsel described as torture, justified the escape. During the escape the prisoners wrote to the Chief Justice complaining of their treatment and then surrendered back to the prison – see Tapa’atoutai and Lolohea v Police [2004] Tonga LR 108. The question as to whether the 61 days period should be taken into account will be addressed later in this judgment.

THE RESPONDENTS TREATMENT IN PRISON

[6] The following description of the Respondents treatment is taken from the judgment of Ford J referred to in the preceding paragraph.

“I set out below the summary of material facts taken from Mr Kefu’s submissions:

“I. The first appellant, Lolohea, is currently serving a sentence of 6 years imprisonment for housebreaking, theft and possession of Indian hemp.

II. The second appellant, Tapa’atoutai, is currently serving a sentence of 15 years imprisonment for manslaughter.