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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF THE REPUBLIC OF VANUATU
(CIVIL JURISDICTION)
CIVIL CASE No. 71 OF 2013
BETWEEN:
SERGE MAMELIN
Claimant
AND:
THE REPUBLIC OF VANUATU
Defendant
Coram: Justice Mary Sey
Counsel: Mr. Saling Stephens for the Claimant
Ms. Christine Lahua for the Defendant
JUDGMENT
Introduction
1. Serge Mamelin claims that on the 20th of October 2008, seven police officers trespassed on to his residence at Salili area at 8am,
threatened him with a firearm and unlawfully arrested him without any warrant or court order and then wrongly imprisoned him at the
Vila Police Station until his release at about 4 pm on the same day.
2. He now sues the Republic of Vanuatu seeking VT3,813,000 for damages in total against the Defendant. The damages sought are divided between the individual causes of action for trespass to property (VT600,000), unlawful arrest (VT600,000), special damage for money lost in the arrest process (VT13,000) and exemplary damage of VT2,000,000 for arbitrary treatment by the police.
3. The Defendant's case is that the arrest was made pursuant to a complaint laid against the Claimant and that any consequent imprisonment was therefore lawful.
Background facts
4. Serge Mamelin was at home at Salili area on 20th October 2008 when members of the Police went onto his property at about 8am. He says he was threatened with a firearm and arrested without a warrant and escorted straight to the Vila Police Station where he was searched and detained in Police cell until 4 pm.
5. He complains that whilst in custody he was not given any food or water and when he asked for food and water he was told to shut up because he is a criminal and does not need food and if he needs water he could urinate in the toilet bowl and drink it. He submits this is relevant to the quantum of damages the Court should award him. He also says that after he was released he discovered that his cash amounting to VT13,000 was missing from his belongings.
6. The Defendant says that in or around October 2008, Senior Sergeant Ron Tamtam who was the officer in charge of Tactical Response Group (the "TRG") had received a complaint from Robert Monvoisin that Serge Mamelin and his agents had entered his property at Tanoliu and carried out illegal logging on the property.
7. The Defendant further says that following that complaint, on 20 October 2008, Senior Sergeant Ron Tamtam instructed Senior Sergeant Roy Karie, Constable Edward Are, Constable Stevie George and Constable Noeline Saksak to go to the Claimant's house to inform him that a complaint relating to trespass, theft and illegal logging had been laid against him and to invite him to go to the Police Station to answer to the complaint. Furthermore, the Defendant contends that the Police Officers have lawful authority to enter onto the claimant's premises and arrest him without a warrant because he was suspected of committing a cognisable offence.
8. The Defendant further says that the Claimant refused to get into the police truck and instead drove his own truck to the Port Vila Police Station where he was held in custody for inquiry and investigation and was later released within 8 hours.
9. Much of the evidence dealt with the background facts set out above. Serge Mamelin deposed to two sworn statements dated 18th March, 2013 and 21st November, 2013 and exhibited as "C1" and "C2" respectfully. Under cross examination Mr. Mamelin maintained that he had been arrested and wrongfully imprisoned without a Court Order or warrant.
10. The Defence called Senior Sergeant Roy Karie and Constable Stevie George as its witnesses. Their evidence at trial was that on the morning of 20th October 2008, they had gone to Mr. Mamelin's house at Salili area to carry out orders from Senior Inspector Ron Tamtam. Mr. Karie said that after arriving at the house he told Mr. Mamelin that there was a report against him by Robert Monvoisin and he asked Mr. Mamelin to accompany them to the Police Station. He said Mr. Mamelin told them that he did not want to get into their truck and that he would drive his own truck instead.
11. In answer to questions put to them under cross examination, both Police officers confirmed that they did not have a warrant to arrest Mr. Mamelin. They said they acted on the orders of their senior officer based on the complaint laid by Robert Monvoisin. They said that they were not able to produce the original complaint or a copy of the Police Occurrence Book (OB) where the formal complaint had been recorded. Mr. Karie went on to say that the report in the OB had to be done by Mr. Ron Tamtam and not by him. Further, that the archives where the Police kept all the old OBs is not in a good condition for them to conduct a search for that particular OB.
The Issues and Decision
12. The issues posed for the Court's determination were identified by counsel in their written submissions as follows:
1. Whether the Police Officers trespassed on to the Claimant's property?
2. Whether the Claimant's arrest was unlawful?
3. Whether the Claimant's imprisonment was unlawful?
4. Is the Republic of Vanuatu liable for the damages claimed by the Claimant?
13. The pivotal question in this case is whether the arrest of Mr. Mamelin and his consequent imprisonment was with reasonable cause. It is trite law that "he who asserts must prove." It is for Mr. Mamelin to prove the facts upon which he relies for his claims and the burden is on him to prove that his arrest was without reasonable cause and therefore his imprisonment was false and unlawful. I must be satisfhat the bale balance of credibility and of sufficiency of evidence is in favour of Mr. Mamelin, if not, I am obliged to dismiss the claims.
14. At paragraph 3 of Exhibit "C1", Mr. Mamelin states:
"Long namba 20th October, 2008 long morning mi stap long house blong mi long Salili Area long Blacksands, taem seven (7) Police Officers oli kam long yard blong mi without wan warrant or court order blong givem right blong arrest, one iholem wan pistol after oli talem longmi sei mi under arrest."
Furthermore, at paragraph 4 of Exhibit "C2", he states:
"Ol police olibin trespass I kam long yard blong mi long Salili aboat 8 o'clock long namba 20th October 2008 mo arrestem mi blong nating nomo go kasem long police station, oli searchem mi, sarem mi long cell namba 6 kasem 4 o'clock long afternoon olsem ale olijes relisim mi without karem any written statement blong mi."
15. The Defendant submits that the reasons for the arrest and the detention of the Claimant on 20th October, 2008 was lawful and in accordance with sections 12(1) and 13 of the Criminal Procedure Code (CPC). Furthermore that the arrest carried out by the Vanuatu Police Force was done in good faith and that they are indemnified under section 40 of the Police Act.
16. It is clear to me that the Defendant has raised justification. As such, it is for the defence to prove legal justification by showing that reasons were given for the arrest and detention. The burden of proof shifts to the Defendant to prove on a balance of probabilities that the actions of the Vanuatu Police Force were justified and I have to satisfy myself that the reasons are proper reasons, that is, reasons based on law.
17. Section 12 of the CPC empowers a police officer to arrest a person without warrant on reasonable grounds, that the person arrested had committed a "cognisable offence."
It provides:
"12. (1) Any poofficer may, with without an order from a judicial officer, or warrant, arrest any person whom he suspects upon reasonable groun having committed a cognisable offence.
(2) Without prejudice to the gene generality of subsection (1) a police officer may without a warrant arrest –
(a) any person who commits ach each of the peace in his presence;
(b) anson who wilfully obstructtructs a police officer while in the execution of his duty, or whoescaped or attempts to escape from lawful custody;
(c) any person whom he sus upon upon reasonable grounds of being a deserter from the police or defence forces;
(d) any person whom hes lying oing or loitering i highway, yard or garden or other place during the night anht and whom he suspects upon reasonable grounds of having committed or beiout to commit an offence or who has in his possession withowithout lawful excuse any offensive weapon or housebreaking implement;
(e) any pefor whom he has reasoreasonable cause to believe a warrant of arrest has been issued."
18. The evidence points to the arrest having taken place as a result of instructions from Senior Inspector Ron Tamtam in order for the Claimant to be held in custody for inquiry and investigation regarding the allegations of illegal logging, trespass on Robert Monvoisin's property and theft. At paragraphs 4 and 5 of the sworn statement of Stevie George for the Defendant he states:
"4. On 20th October, 2008, Senior Inspector Ron Tamtam of Tactical Response Group asked Constable Edward Are, Constable Noeline Saksak, Senior Sergeant John Roy Karie and I to attend Serge Mamelin's house and ask him to attend the Police Station.
5. Following orders from Senior Inspector Ron Tamtam on the morning of 20 October 2008, Senior Sergeant John Roy Karie, Constable Edward Are, Constable Noeline Saksak and I attended Serge Mamelin's house."
19. As His Lordship Spear J. stated in Songi George & Ors v The Republic of Vanuatu Civil Case No. 242 of 2012, "There is, however, no power of arrest reposed in the police just to enable a person to be questioned. Furthermore, a mere instruction or direction, even from a Commissioner of police, does not carry the authority of a warrant to arrest nor does it amount to an accusation that a person has committed a criminal offence."
20. Section 13 of the CPC clearlyls out thut the procedure to be followed when any officer in charge of a police station requires any officer subordinate to him rest without a warrant:
"13. When any officer in charge of a police statiotation requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall give the officer required to make the arrest an order in writing specifying the person to be arrested and the offence or other cause for which the arrest is to be made."
21. The Defendant has not adduced any evidence to show that Senior Inspector Ron Tamtam gave any officer subordinate to him an order in writing specifying the Claimant as the person to be arrested and the offence or other cause for which the arrest is to be made. To accuse a person of an offence generally requires the initiation of a formal process for the laying of a complaint or at least a formal accusation being made and recorded. There is no evidence that such a complaint was laid or even that an accusation was made by Robert Monvoisin. The Defendant could not produce the Police Occurrence Book nor was there evidence from Senior Inspector Ron Tamtam to say that he actually gave orders for the Claimant's arrest and that he exercised his discretion pursuant to section 18 (2) of the CPC to release the Claimant. It is also noteworthy that Mr. Mamelin was never charged and prosecuted for any offence.
22. In delivering his judgment in Clement Waiwori v Attorney General & Alloysius Ora Civil Case No. 320 0f 1995; [1997] SBHC 50; [High Court of the Solomon Islands], a trial case in which Mr. Waiwori had sued for unlawful arrest and detention, Lungole Awich, J. stated that:
"Arrest made outside the provisions of the legislations must therefore be taken to be unlawful interference with liberty... The ordinary expression unlawful arrest and unlawful detention would be adequate and conveys accurately the information that the arrest and detention were made in circumstances outside the provisions of the legislations."
23. Judging from the totality of the evidence adduced, I find that the arrest and detention of Mr. Mamelin on 20th October, 2008 were made in circumstances outside the provisions of the legislations. The Police had no lawful reason to arrest Mr. Mamelin and as such his arrest and consequent imprisonment were unlawful.
24. On the issue of trespass to property, counsel has referred me to the case of Bob v Stettin Bay Lumber Company Ltd [2008] PGNC 120; N3440 (22 August 2008) where the Court held that:
"To succeed in an action for trespass to land, a plaintiff must prove five things:
(a) the defendant entered land, either directly (in person) or indirectly (eg by propelling an object or a third party on to the land); and
(b) the defendant did so by some intentional act;
(c) the defendant had no lawful authority;
) the plai plaintiff was in lawful possession of the land; and
(e) the plaintiff's enjoyment of the land was interfered with.
25. I have considered this presase in light of this authoruthority and I find that all these five elements of trespass exist. The Claimant was in lawful possession of his property at Salili area and he was in the process of making breakfast for his children when the police officers entered his compound. I find that those police officers had no lawful authority and were mere trespassers on the Claimant's property.
26. It needs to be reiterated that the police can only enter your property or home if:
27. Undoubtedly, there are circumstances where our privacy interests are trumped by other interests. In particular, there may be times when the values of public safety, health, and well-being outweigh the values secured through strict privacy protections. The Courts have recognized this and they carve out an exception for police having to secure prior authorization through a warrant in cases of "hot pursuit" or cases where an illegal activity is being done on private property but "in plain view" of the public.
Damages
28. On the question of assessment of damages, some guidance has been gained by the Court of Appeal decision in Warte v Ric of Vanuatu [2VUCA 10; CivilCivil Appeal 52-12 (26 April 2013). The Court of Appeal considered tha Dornic and Mr McNicol "were arresnd imprisonedsoned without cause and in circumstaumstances where the arresting police officers were well aware that the arrests were not justified." The Counsidered that damageamages should be awarded within a range of VT400,000 to VT600,000 for false imprisonment. As Mrs Dornic had been assaulted she received a higher award of VT600,000 and Mr. ol VT400,000. Mrs Dornic alic also received VT1,000,000 for trespass on her land without lawful justification by the police officers.
29. Damages for false imprisonment are generally assessed having regard to two principal considerations. The first is the injury to liberty and the second is the injury to feelings – McGregor on da (17th Edition) para 37 – 007. In the case of Songi George & Ors v The Republic of Vanuatu (supra), Spear J. stated that "thnjuries to feelings obviously were aggravated because of thof the humiliation of being subjected to arrest and detention in the very police station in which they worked and in front of junior staff." In the course of discussion between counsel and the Court, agreement was reached on an approach to assess the damages. In each case, counsel accepted that the Claimants should be entitled to damages for their loss of liberty at the rate of VT100,000 per hour of detention. Furthermore, each of the claimants received an additional amount of VT500,000 for the injuries to their feelings arising from the manner of the arrest and detention.
30. In this instant case, it is clear from the evidence that the Police did not have a legitimate reason to enter Mr. Mamelin's land on 20th October 2008 and they trespassed on his land without lawful justification. In the circumstances, I consider that an appropriate award for trespass to his property is VT600,000. Moreover, I am satisfied on the evidence that the Claimant was arrested at 8am and eventually released at 4pm later that day. He is entitled to damages assessed at VT800,000 for the unlawful arrest and his loss of liberty for 8 hours.
31. In paragraph 8 of Exhibit "C" Mr. Mamelin stated as follows:
"8. Long afternoon nao oli just releasem me long namba 6 mo taem oli givim bak ol clothes blong mi mi no faenem amount blong Vatu 13,000 blong mi ale taem mi askem long ol Police, olgeta italem long me se oli no save about money ia."
32. The Court notes that the Defendant never challenged the claim by the Claimant that his money had gone missing either by its defence or by way of evidence contained in the sworn statements filed by the Defendant.
33. In the Defendant's submissions, counsel submits that it is clear from the Claimant's evidence that the Police were not aware of the VT13,000 when he asked them if they had seen the sum of VT13,000. Counsel further submits that the claim under special damages must fail due to lack of evidence to prove that the Claimant was in possession of VT13,000 when he was at the Police Station and that the VT13,000 had in fact gone missing after he was released from the Police Station.
34. To bolster her submissions, counsel referred the Court to the case of Bonham-Carter v Hyde Park Hotel Ltd, (1948) 64 T.L.R 177 at page 178 where Lord Goddard C.J stated as follows:
"On the question of damages I am left in an extremely unsatisfactory position. Plaintiffs must understand that if they bring actions for damages it is for them to prove their damages, it is not enough to write down the particulars and so to speak, throw them at the head of the Court saying; this is what I have lost I ask you to give me these damages. They have to prove it."
35. It is trite that closing submissions made by counsel are not evidence. The Defendant should have challenged the Claimant's claim in respect of the missing sum of VT13,000 either by its defence or by way of evidence contained in sworn statements. The Defendant also failed to produce a copy of the detainee's personal property register which would have showed that his personal items were removed from him on 20th October 2008 and later signed out by him upon his release. Under cross examination, it was put to the Claimant that it would be correct to say that the police never saw his VT13,000. His answer was "they did see it. When I was released they threw my clothes on the floor as if I was a dog."
36. Suffice it to say that the Court accepts the Claimant's claim for special damage on the balance of probabilities and makes an award for the sum of VT13,000.
37. Mr. Mamelin has also claimed the sum of VT2,000,000 as exemplary damages for arbitrary treatment exerted on him by the police. Exemplary damages are damages that are awarded not merely to recompense the Claimant for the loss that he has sustained by reason of the Defendant's wrongful act, but to punish the Defendant in an exemplary manner and vindicate the distinction between a willful and an innocent wrongdoer.
38. In Banga v Waiwo [1996] VUSC 5, the Court stated that:
"in order to justify the award of exemplary damages, it is not sufficient to show merely that the defendant has committed a wrongful act. The conduct of the defendant must be high handed, insolent, vindictive, or malicious, showing contempt of the plaintiff's right, or disregarding every principle which actuates the conduct of common decency. In particular, the defendant's persistence in the act with knowledge, and the language accompanying it, as well as his conduct at the trial of the action itself, are elements to be considered."
39. In John Tuink Salamon v The Independent State of Papua New Guinea [1964] PNG RR 266, the National Court of Justice awarded exemplary damages on the claim for breach of constitutional rights. Woods, J. said:
40. It seems clear to me that exemplary damages may be awarded in situations where there is some deliberate oppression, where a tort
is committed somewhat flagrantly or where warnings against repetition of such conduct have been given. Factors of that nature are
not apparent in this case. I will therefore disallow the sum of VT2,000,000 claimed as exemplary damages.
41. Judgment is hereby entered for the Claimant in the sum of VT1,413,000 with costs on a standard basis to be agreed or taxed.
Dat Port Vort Vila, this 27th day of January, 2015.
BY THE COURT
M.M.SEY
Judge
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