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Lesatele v Attorney General [2024] WSSC 123 (9 October 2024)

IN THE SUPREME COURT OF SAMOA
Lesatele v Attorney General & Ors [2024] WSSC 123 (9 October 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

KATERINAUATALIA TALOSAGA MARIA TOILOLO EGELANI LESATELE

Plaintiff

AND:

ATTORNEY GENERAL sued for and or behalf of MINISTER OF POLICE

First Defendant

AND:

BERRE ISOPO Police Officer

Second Defendant

AND:

SAISIRITA TUFUGA Police Officer

Third Defendant

AND:

HANANIA LENE Police Officer

Fourth Defendant

Counsel: P. Chang for Plaintiff

D. Fong & S. Sapolu – Margraff for First, Second, Third & Fourth Defendants

Hearing: 26 February 2020
Decision: 9 October 2024

RESERVED JUDGMENT

Introduction

1. The second, third and fourth defendants are sworn members of the police force. They are being sued for their actions or inaction in the course of their employment as police officers. The first defendant is being sued vicariously as their employer. These proceedings concern their motion dated 19 August 2019 to strike out the Plaintiff’s Statement of Claim dated 2 July 2018 (Claim).

Plaintiff’s Claim

2. The plaintiff alleges that on 12 April 2017, the second, third and fourth defendants arrested her at a shop on the ground floor, Ioane Viliamu Building at Tamaligi. The arrest was witnessed by members of the public.
3. She was taken in for questioning, charged with counts of harassment utilizing means of electronic communications and told additional charges would be filed. She was remanded in custody overnight and upon the fourth defendant’s request, further remanded in custody until released on 17 April 2017.
4. Following a couple of appearances in the District Court, the hearing of the charges was set for 7 July 2017. That day on application by prosecution, the charges were withdrawn and dismissed on the basis that they could offer no evidence in support of the allegations.
5. Prior to the plaintiff’s arrest, the second defendant and other officers had been to her place to question her on the identity of OLP. The second defendant initiated the investigation and identified the plaintiff to Police as OLP. She posted on social media when the plaintiff was released from custody that she would come back and lock up the plaintiff and her lawyer. She also made false claims on social media that when police arrested the plaintiff, she tried to escape and avoid them by hiding under a table.

Plaintiff’s Causes of Action

6. On these pleaded facts, the plaintiff pleads against the defendants seven causes of action:
   • (a) Unlawful arrest
     • (i) the arrest was unlawful as it was without just cause and / or without any admissible evidence against her.
   • (b) Abuse of power and / or misfeasance of office
     • (i) there was no proper investigation by police who proceeded to arrest her on assumption and without any investigation;
     • (ii) they arrested her without any admissible evidence and good cause;
     • (iii) they placed her in custody overnight without justification and did not bring her before a court registrar for remand;
     • (iv) they sought to have her remanded in custody for a further four days without good cause and / or justification and / or evidence to support the charges;
     • (v) they proceeded to file charges without any admissible evidence to support them.
   • (c) Negligence
     • (i) the defendants owed a duty of care to ensure investigations were properly done, there was evidence to substantiate the allegations against the plaintiff, detention was reasonable in the circumstances, and her personal freedom was not unreasonably taken away by being held in custody for 5 days;
     • (ii) they breached that duty of care when they arrested the plaintiff and placed her in custody for 5 days without any admissible evidence.
   • (d) Breach of Statutory duty
     • (i) the arrest and detention was without good cause;
     • (ii) the arrest was unreasonable;
     • (iii) the arrest and detention was unlawful.
   • (e) Breach of constitutional rights
     • (i) the plaintiff’s arrest and detention without good cause breached her right to personal liberty under Article 6 of the Constitution;
     • (ii) by arresting and detaining the plaintiffs to harass and / or coerce evidence, the defendants breached the plaintiff’s right to be free from inhumane treatment and / or her right not to be compelled to give evidence against herself.
   • (f) False imprisonment and / or unlawful detention
     • (i) the plaintiff was falsely imprisoned and unlawfully detained for five days by police.
   • (g) Malicious prosecution
     • (i) the plaintiff was charged on charges of harassment under s219 Crimes Act without proper inquiry or investigation and any admissible evidence;
     • (ii) the plaintiff was kept in custody at the instigation of the second defendant who had personal issues with the plaintiff;
     • (iii) the prosecution against the plaintiff was malicious.
7. The plaintiff claims that as a result of the pleaded causes of action, she suffered injury to liberty, dignity and mental suffering; disgrace and humiliation; loss of physical comfort whilst in custody, and distress and anxiety. She claims general damages of $300,000.00 and aggravated and punitive damages in the sum of $150,000.00.

Defendants Motion to Strike out

8. By motion dated 19 August 2019, the defendants seek to strike out the claim on grounds that:
   • (i) no reasonable causes of action are disclosed;
   • (ii) it is frivolous, vexatious and an abuse of process and has no prospects of success for reasons:
     • (a) it does not comply with the limitation requirements provided by s21 Limitation Act 1975 and s67 Police Service Act 2009;
     • (b) it is not adequately pleaded;
     • (c) it does not adequately specify the actions of each defendant and how they satisfy the elements of the causes of action;
     • (d) there is no basis for the exorbitant amount of general and punitive damages claimed.
9. The Motion is supported by affidavits sworn on 20 February 2020 by the second, third and fourth defendants.
10. The second defendant deposed that her involvement in the events of 12 April 2017 was limited to identifying the plaintiff on request by the fourth defendant who carried out the investigation. She was neither involved in the plaintiff’s arrest nor did she act negligently, unlawfully or maliciously towards her.
11. The third defendant deposed that she was involved in the plaintiff’s arrest on 12 April 2017. She was briefed on the investigation by the fourth defendant, after which she accompanied another officer Iosua Fiva to the Ioane Viliamu Building to make the arrest. She found the plaintiff inside the room and asked her to come with police to the station. She interviewed the plaintiff that afternoon in the presence of the fourth defendant before charging her. She denies acting with malice and improper purpose and says that based on the information provided, she had good cause to suspect the plaintiff of having committed an offence.
12. The fourth defendant in her affidavit explains in detail the background of their investigation leading up to the arrest, the police interview and her request to the registrar to further remand the plaintiff in custody whilst the investigation continued. She denies the investigation was improper but that it provided police reasonable and good cause to suspect the plaintiff had committed an offence.

Law

13. Rule 70 Supreme Court (Civil Procedure) Rules 1980 empowers the Court on application of the defendant to strike out any proceedings where no reasonable cause of action is disclosed. In Enosa v Samoa Observer [2005] WSSC 6, Sapolu CJ said of the jurisdiction as follows:
    • “The jurisdiction to strike out a statement of claim for disclosing no reasonable cause of action must be sparingly exercised. The factual allegations in support of the claim are assumed to be true and correct. The jurisdiction will only be exercised where it is very plain and obvious that the plaintiff’s claim is so clearly untenable that it cannot possibly succeed”
14. Further the Supreme Court has an inherent jurisdiction to strike out proceedings on the basis that they are frivolous, vexatious or an abuse of process. In Jackson v Attorney General [2009] WSSC 73, Nelson J summarised the jurisdiction as follows:
    • “The legal basis upon which a court will strike out an action because it is frivolous, vexatious or an abuse of process is well known and established. All counsels have referred to them in their submissions in particular the leading case of Enosa v Samoa Observer [2005] WSSC 6 where it was said –
    • “A pleading or action is frivolous when it is without substance, groundless, fanciful, wasting the court’s time or not capable of reasoned argument. A pleading or action is said to be vexatious when it is lacking in bona fides, hopeless, without foundation, cannot possibly succeed or is oppressive.”
15. Where a claim is sought to be struck out on the basis it is not maintainable in law, the court’s jurisdiction must be sparingly exercised (Pacific Forum Line Ltd v Samoa Ports Authority [2011] WSSC 92).
16. The exercise of the power to strike out under the court’s inherent jurisdiction “... is discretionary (and) ... a jurisdiction which will be exercised with great circumspection and only where it is perfectly clear that the plea cannot succeed, it ought to be exercised sparingly and only in exceptional cases.” (Kneubuhl v. Liugalua [2000] WSSC 27).
17. The Plaintiff’s pleadings are assumed to be true or capable of being proved (Enosa v Samoa Observer [2005] WSSC 6; Hansell v Attorney General [2018] WSSC 74).

Discussion

Ground 1 – Plaintiff’s claim does not comply with the requirements under s21 Limitation Act 1975 and / or s67 Police Service Act 2009.

18. It was submitted for the defendants that the claim cannot be maintained in law and must be struck out because it does not comply with and therefore barred by the limitation requirements of s67 Police Service Act 2009 and / or s21 Limitation Act 1975.
19. S67 Police Service Act 2009 states:

“67. Limitation of Actions – (1) For the protection of members and persons acting in the execution of this Act, all actions against any person for anything done under the authority of this Act shall be commenced within 1 year after the cause of action has arisen.”

20. Along the same vein, S21(1) of the Limitation Act relevantly provides:

“21(1) No action is to be brought against any person (including the Government) for any act done in pursuance or execution or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any neglect or default in the execution of any such Act, duty, or authority, unless ... (b) the action is commenced before the expiration of 1 year from the date on which the cause of action accrued:

PROVIDED THAT, where the act, neglect, or default is a continuing one, no cause of action in respect thereof is deemed to have accrued, for the purposes of this section, until the act, neglect, or default has ceased ... “

21. The limitation may be extended under s21(2) which provides as follows:
    • “ ... application may be made to the Court ... for leave to bring such an action at any time before the expiration of 6 years from the date on which the cause of action accrued ... and the Court may, if it thinks it is just to do so, grant leave accordingly, subject to such conditions (if any) as it thinks it is just to impose ... ”
22. s30 then provides:
    • “This Act does not apply to any action or arbitration for which a period of limitation is prescribed by any other enactment.”
23. The defendants submitted that the plaintiff’s causes of action in unlawful arrest, misfeasance in public office, negligence, breach of statutory duty, breach of constitutional rights and false imprisonment would have accrued in April 2017 when the defendants are alleged to have carried out the investigation, arrested, charged and detained the plaintiff. The fact that the claim was filed in July 2018, they argued means that the plaintiff’s action commenced after the expiration of the one (1) year limitation period prescribed under both s67 Police Service Act 2009 and s21(1) Limitation Act 1975.
24. The defendants further submitted that because the limitation is prescribed under the Police Service Act, the Limitation Act does not apply by virtue of its s30. And because the Police Service Act does not have provision for filing an action out of time, the plaintiff’s claim is therefore statute barred.
25. They submitted further that even if the court found the Limitation Act to apply, the plaintiff had not sought and been granted leave under s21(2) to file her action out of time.
26. There seems to be no dispute that the defendants’ actions complained of and forming the basis of the plaintiff’s claim were carried out in the execution and performance of their duties under the Police Service Act. The provisions of the Police Service Act therefore apply and so does its limitation requirement under s67.
27. I do not accept however the defendants’ submission that the plaintiff’s causes of action accrued in April 2017 when police carried out their investigation, arrested, charged and detained the plaintiff. Rather they continued, ceased and accrued on the 7 July 2017 when police withdrew charges in the District Court on the basis that they could offer no evidence in support of the charges.
28. Despite the plaintiff’s objection to the defendants’ allegations and the way she was treated, her causes of action are clearly dependent on whether police had evidence to prove the allegations, and justify as proper and lawful their conduct in the execution of their duties. The withdrawal of the charges on 7 July 2017 because police had no evidence arguably suggests their actions were without proper and lawful basis. That is the basis of the plaintiff’s claim and I find that her causes of action accrued then. The 12 months limitation period under s67 expired on 6 July 2018, the plaintiff’s claim filed on 2 July 2018 was within the limitation period.
29. The first ground fails.

Ground 2 – The claim does not disclose any reasonable causes of action – it fails to plead sufficient and specific facts to support the pleaded causes of action against each defendant.

Unlawful Arrest

30. The 2 ingredients that the Plaintiff must prove are:
    • (a) she was arrested by the defendants;
    • (b) the defendants who carried out the arrest did not have good cause to suspect the plaintiff of having committed an offence.
31. It was submitted for the defendants that the plaintiff’s pleadings are general and do not specify the officers who made the arrest. They cannot therefore sufficiently address whether the officers had good cause to suspect the plaintiff of having committed an offence.
32. I do not agree. From the pleadings, the arrest was made by a number of police officers and names the second defendant amongst them (paragraph 15). That she disputes by affidavit her involvement in the arrest requires resolution at trial. Aside from the plaintiff’s pleadings, the third defendant by her own affidavit evidence says she was also involved in the arrest.
33. On whether they had good cause to suspect the plaintiff of having committed the offence, it is pleaded (paragraphs 15 - 17) that the investigation was initiated by the second defendant; she questioned the plaintiff on the identity of OLP; and with other officers arrested the plaintiff. The plaintiff denied the charges and at the hearing, police withdrew the charges because they could offer no evidence to substantiate the allegations. These pleaded facts are assumed to be true. Whether or not they sufficiently prove that the officers including the second and third defendants did not have reasonable cause to suspect the plaintiff of having committed an offence requires determination at trial.
34. I find that the claim discloses a reasonable cause of action in unlawful arrest. The defendants’ submission on this ground fails.

Abuse of Power and / or Misfeasance of Public Office

35. The elements that the Plaintiff must prove are:
    • (a) the defendant must be a police officer;
    • (b) the impugned act must have involved the exercise of power by the defendant as a public officer;
    • (c) the defendant must have acted in bad faith in that she exercised the power for an ulterior motive (intended to injure the plaintiff), or knew that she had no power to do the complained act and the act will probably inure the plaintiff;
    • (d) duty to the plaintiff ... ;
    • (e) causation ... ;
    • damage and remoteness ...
    • (Chang Tung v Attorney General [2005] WSSC 24; Stowers v Attorney General [2019] WSSC 59)
36. The defendants submitted that the plaintiff (paragraphs 22 – 27) has not expressly identified the public officer against whom the allegation is made and particularised the claim against that specific public officer. That the impugned acts alleged are not specifically attributed to each of the second third and fourth defendants but in general terms to the police officers who are members of the first defendant. And that the plaintiff has not pleaded specific facts to show any or each of the defendants possessed the necessary state of mind, which requires subjective bad faith in the sense of dishonesty to give rise to the tort of misfeasance in either of its forms.
37. I accept the defendants have not been specifically named, and their involvement identified. But the claim is pleaded on the basis that the first defendant is vicariously liable by either the actions of each of the second third and fourth defendants and / or a combination of their conduct.
38. The pleaded facts (at paragraph 22) upon which this cause of action is founded are that the plaintiff’s arrest was without good cause and admissible evidence; she was unnecessarily held in custody overnight instead of being taken before a registrar; she was further held in custody without good cause on request by the defendants; and charged without admissible evidence.
39. It is further pleaded (at paragraph 33) that the second defendant following an exchange of social media posts with OLP, took officers to the plaintiff’s house and questioned her on the identity of OLP; she accused the plaintiff of being jealous; posted on social media before the arrest that police were coming for the plaintiff; again posted on social media that when arrested, the plaintiff tried to hide from police; and following the plaintiff’s release from custody that she would come back and lock up the plaintiff and her lawyer.
40. Assuming those pleaded facts are true and police had no evidence to support the allegations, they would be relevant in proving that the second defendant acted in bad faith and intended to injure the plaintiff. This requires determination at trial.
41. The defendants’ submission on this ground fails.

Negligence

42. The elements that the plaintiff must prove are:
    • “(a) the defendant owed a legal duty of care to the plaintiff;
    • (b) the defendant acted in breach of that duty;
    • (c) the plaintiff suffered damage as a consequence of that breach;
    • (d) the damage suffered by the plaintiff was not too remote but a sufficiently proximate consequence of the defendant’s breach of duty.”
    • (Sua v. Attorney General [2013] WSSC 1; Hansell v Attorney General [2018] WSSC 74)
43. The plaintiff’s claim alleges that the defendants owed a duty of care owed to ensure investigations are properly done and there was evidence to substantiate the allegations; and ensure detention was reasonable and necessary in the circumstances.
44. It is then alleged that the defendants breached that duty when they arrested the plaintiff and placed her in custody without any evidence that can be used against her.
45. Though the pleaded facts in general terms may satisfy the elements of the tort of negligence, I accept the defendants’ submission that they do not disclose how each of the defendants owed the plaintiff a duty of care; the scope of that duty; and how each of the defendants breached that duty by failing to exercise the required skill and care in its performance.
46. I grant leave for the plaintiff to amend her claim to show with sufficient particularity (a) the scope of the alleged duties of care pleaded (b) how the defendants breached the duties and (c) the facts that support those pleadings.
47. It is further submitted for the defendants that there can be no duty of care owed by a police constable conducting a criminal investigation to a suspect in that investigation. They made reference to King v Attorney General [2017] NZHC 1696 where the New Zealand High Court in an application to strike out a suspect’s claim for negligent investigation by police held there was no general duty of care in relation to setting the law in motion. It said of the recognition of any such duty that “the simple reality is that a police officer who would previously have been liable (because he or she did not act maliciously in charging the suspect) could now be liable (if she was careless in the investigation of the offence) if the duty of care were recognised. ... that would effect a substantial change in what is now settled New Zealand law in the area of civil liability for the wrongful initiation of proceedings.”
48. The issue of whether the same applies to Samoa has not been fully argued in these proceedings and if necessary, requires determination at trial.

Breach of Statutory Duty

49. The elements that the plaintiff must satisfy for breach of statutory duty are:
    • (a) a breach of statutory duty;
    • (b) a legislative intention that breach of the obligation should be a ground of civil liability in relation to a class of persons to which the plaintiff belongs;
    • (c) injury or damage of a kind for which the law awards damages and against which the statute was designed to give protection;
    • (d) a causal nexus between the breach of obligation and the injury or damage.
    • (Hansell v Attorney General [2018] WSSC 74)
50. The claim pleads that “the defendants in arresting the plaintiff breached their statutory duty in deciding to exercise their discretion to arrest the plaintiff and placing her in custody.” The particulars pleaded are that the arrest and detaining in custody was without good cause, unreasonable and unlawful.
51. The defendants seek that this cause of action be struck out on the basis that the plaintiff does not expressly plead the statute and provision that creates the duty that the plaintiff alleges to have been beached; and that she has not pointed to any legislative intention that the breach of the obligation should be a ground of civil liability in relation to a class of persons to which the plaintiff belongs.
52. The plaintiff in submissions cited s29(3) Criminal Procedure Act 2016 and s6(1) Government Proceedings Act 1974 as the relevant legislative provisions, which I need not re state here. I find helpful however the discussion of the relevant statutory provisions in Hansell v Attorney General [2018] WSSC 74 where the court determined an application to strike out a similarly pleaded cause of action in breach of statutory duty.
53. I grant as the Court in Hansell, the plaintiff the opportunity to amend her pleadings as these may be cured by amendment. Leave is granted to the plaintiff to (a) expressly plead the statute alleged to create the statutory duty (b) the scope of such duty (c) how the defendant is alleged to have breached the statutory duty and (d) damage alleged to have been suffered by the plaintiff as a result of the alleged breach.

Breach of Constitutional Rights

54. It is alleged that the defendants in arresting and detaining the plaintiff unlawfully and / or unreasonably and / or without just cause breached the plaintiff’s right to personal liberty under Article 6 of the Constitution. The defendants do not appear concerned with this part of the claim.
55. But the Plaintiff further alleges that in arresting and detaining the plaintiff to harass and /or coerce evidence, the defendants were in breach of the plaintiff’s right to be free from inhumane treatment and / or breach of the right not to be compelled to be a witness against herself.
56. I accept the defendants’ submission that no facts are pleaded to support the allegation that the defendants arrested her to harass and / or coerce evidence; and no facts are pleaded to show how the plaintiff was subjected to inhuman treatment in breach of Article 7 which the plaintiff has also not pleaded; and no facts were pleaded to support that the Plaintiff was compelled to be a witness against herself.
57. I grant leave to the plaintiff to (a) expressly plead what constitutional right(s) she alleges to have been breached (b) the facts that show how each right was breached either by each defendant’s conduct or a combination of their actions or inaction (c) and that the first defendant is vicariously liable.

False Imprisonment

58. The plaintiff alleges she was falsely imprisoned and / or unlawfully detained for a period of 5 days. She does not however plead which of the second third or fourth defendant was responsible.
59. The dispute as to the term of imprisonment raised by the defendants is a matter to be resolved at trial.
60. Leave is granted to the plaintiff to plead how she was falsely imprisoned and by which defendant.

Malicious Prosecution

61. In an action for malicious prosecution, the plaintiff must show:
    • (a) he was prosecuted by the defendant;
    • (b) the prosecution was determined in his favour;
    • (c) it was without reasonable and probable cause;
    • (d) it was malicious;
    • (e) he suffered damage as a consequence of the proceedings.
    • (Sialaoa v. Kamu [1996] WSSC 15)
62. It is alleged that the plaintiff was charged by police on charges of harassment (s291 Crimes Act 2013) without any admissible evidence and / or proper inquiry; and that she was kept in custody at the instigation of the second defendant who had personal issues with the plaintiff and therefore acted with malice.
63. The defendants submitted that no specific facts have been pleaded to satisfy each of the elements against the third and fourth defendants.
64. Clearly the pleaded facts which are assumed to be true are directed at the second defendant. The particulars of the allegations at paragraph 38 and the fact that the charges were withdrawn because police could offer no evidence in support may satisfy the elements of the tort against the second defendant and vicariously against the first defendant. There is no requirement for the plaintiff to allege against the third and fourth defendant facts she was unaware of and bear the onus of proving same at trial.
65. The defendants’ submission on this ground fails.

Ground 3 – The claim is frivolous, vexatious and an abuse of process and has no prospects of success.

66. The basis of the defendants’ submission under this ground is that the plaintiff’s claim is barred by s67 Police Service Act and / or the Limitation Act and therefore not maintainable in law; it is not adequately pleaded and fails to disclose complete causes of action; and it makes blanket allegations without specifying the actions of each defendant and how they each satisfy the elements of the pleaded causes of action.
67. For reasons discussed above under each cause of action, I reject the defendants’ submission under this ground.

Conclusions

68. The defendants’ application to strike out the plaintiff’s claim on all three grounds is dismissed.
69. Whilst the claim pleads in general the facts that may satisfy the elements of each cause of action, I accept that the pleadings could have been better prepared by identifying how each of the second third and fourth defendants were liable if possible, and the essential facts the plaintiff relies in support of her claim under each cause of action. Even if it meant repeating the same facts for every cause of action. After all, the purpose is to properly inform the court and other parties of the nature of the claim and the material facts intended to prove the claim.

Orders

70. I make the following orders:
    • (a) the matter will be rementioned on Monday 4 November 2024;
    • (b) the plaintiff is to file and serve an Amended Statement of Claim addressing the matters raised above in respect of the following causes of action:
      • (i) Negligence (paragraph 46);
      • (ii) Breach of Statutory duty (paragraph 53);
      • (iii) Breach of Constitutional rights (paragraph 57);
      • (iv) False Imprisonment (paragraph 60).

costs reserved.

71. Finally this decision should have been handed down much sooner. The very long delay is regretted, I extend my apologies to the parties and counsel.

JUSTICE ROMA