Turapu v Attorney General of Fiji [2001] FJHC 218; HBC6.2001 (18 July 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 6 OF 2001

Between:

RIOGI FIMONE TURAPU
Plaintiff

And

ATTORNEY-GENERAL OF FIJI
Defendant

Mr. T. Fa for the Plaintiff
Mr. A. Adamu for the Defendant

DECISION

This is the defendant’s summons for an order that the ‘Plaintiff/Respondent’s Statement of Claim be struck out and the action dismissed on the ground that the same is an abuse of the process of this Honourable Court’.

Applicant/Defendant’s contention

An affidavit in support sworn 1 February 2001 has been filed. It sets out in considerable detail the circumstances under which the plaintiff was detained and I do not propose to reiterate them. The plaintiff was taken to the Police Station where his Statement was taken and warned for indictment. Investigation of the plaintiff for his involvement in the alleged crime is continuing and when the Police decide that there is enough evidence against him to warrant a prosecution he will be brought before the appropriate Court for trial. The deponent says that the detention of the plaintiff by the defendant was based on reasonable suspicion that he had committed an arrestable offence, namely, sedition.

The deponent further stated that the ‘detention of the plaintiff was necessary for the purpose of police investigation into his alleged role in seditious and other criminal activities’. His detention for 48 hours he says is lawful and in accordance with Fundamental Rights and Freedoms Decree No. 7 of 2000. He says that the plaintiff’s ‘suit is pre-emptive, against public policy and brought with a view to frustrating the Defendant’s investigation into the matter, and possible prosecution of the Plaintiff, and is thus an abuse of the process of this Honourable Court’.

The defendant therefore seeks an order for the dismissal of the action.

Plaintiff’s affidavit in reply

The plaintiff denies all allegations relating to ‘suspicious activities of some individuals going about the Island with a view to causing disaffection against the Government of Fiji and promoting ill will and ill feeling on the Island’ as anything to do with him. He said that ‘as members of the Molmahau Clan our interest is not destabilization of the country but the independence of Rotuma from Fiji within the law of the land’.

He goes on to say that he was not involved in any seditious activities but admits that as a member of the Molmahau Clan he has always maintained his belief on the independence of Rotuma from Fiji. He says that he is 78 years old and has never practised ‘martial art’ in his life; he states that on the day in question, he was handcuffed and put at the back of Mr. Makrava’s open van and that he ‘was driven through half of Rotuma on display. It was a deliberate attempt on the part of those involved to humiliate me in front of my fellow Rotumans’.

The plaintiff says that ‘since my false arrest by the police in December, 2000 and my release, I still have not heard from them. In the meantime I have instituted civil proceedings for damages for the said false arrest and abuse of discretion by the police. This is my right to sue in our Court and seek remedial action therefrom’.

He says that his detention was unlawful and a violation of his right under the 1997 Constitution, the Emergency Decree 2001 and the Fundamental Rights and Freedoms Decree 2000.

The plaintiff says that the defendant should file his defence and the action should take its normal course and that the defendant’s application be dismissed.

Determination of the issue

This application is made under Or 18 r18(1)(d) of the High Court Rules which provides, inter alia, in so far as it is relevant:

18(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action or anything in any pleading or in the indorsement, on the ground that-

1. .....
   
2. .....
   

100. .....
     

4. ....
   
5. it is otherwise an abuse of the process of the court: and may order the action to be stayed or dismissed or judgment to be entered accordingly as the case may be.
   

I have before me written and oral submissions from the applicant’s counsel and an oral submission from counsel for the plaintiff; I have given these their due consideration. The factual background to the case on essential matters have been comprehensively covered in the affidavits filed herein and briefly stated hereabove.

The issue for Court’s determination is whether the institution of the present action is an abuse of the process of the court.

In dealing with this issue, I bear in mind the following passage for Halsbury’s 4th Ed. Vol. 37 para 435.

The power to strike out, stay or dismiss under the inherent jurisdiction is discretionary. It is 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. However, for this purpose the court is entitled to inquire into all the circumstances of the case, and to this end affidavit evidence is admissible. (my emphasis)

A matter to be considered is whether the cause of action as stated by the plaintiff is so clearly untenable that it cannot possibly succeed.

The plaintiff’s main argument is that he was unlawfully arrested and therefore, inter alia, he is entitled to damages. This he is claiming through his said writ of summons.

The circumstances leading to the applicant’s arrest have already been stated hereabove. I agree with the learned defence counsel Mr. Adamu that the police went to the Island to investigate alleged seditious activities of the plaintiff and his Molamahau Clan and in the process the Police gathered evidence and on the basis of which the plaintiff was arrested and detained for 48 hours as permitted under the law. His son was charged and taken to court while investigation into his own alleged involvement continued and is continuing.

On the affidavit evidence before me I hold that the actions of the police were well within their powers and they proceeded with the matter in accordance with the law. It is quite plain and obvious on the evidence before the Court that the plaintiff’s action is one which cannot succeed while the matter is still or was at an investigative stage. The institution of these proceedings by the plaintiff is clearly an abuse of the process and the case unarguable. The law in the application of this order on the facts of this case is as stated in the Notes to Or.18 r.19 in The Supreme Court Practice 1979 Vol I p312 that: ‘it is only in plain and obvious cases that recourse should be had to the summary process under this Rule’ and that ‘it can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable’ (AG. of Duchy of Lancaster v L. & N.W. Ry. Co [1892] UKLawRpCh 134; [1892] 3 Ch 274, C.A.).]. This in fact in my view, on the facts, is the situation in this case. I am satisfied that there is no reasonable cause of action and that the proceedings are frivolous and vexatious.

The plaintiff said that his arrest was unlawful. I agree with Mr. Adamu’s submission that it was not and I adopt his argument in this regard. Section 21(a) of Criminal Procedure Code Cap. 21 enjoins that any police officer may without a warrant arrest any person whom he suspects upon reasonable grounds of having committed a cognizable offence. A cognizable offence is defined as any offence in respect of which the police may arrest without a warrant. In this case the police were investigating the plaintiff for alleged seditious activities. Sedition is an offence under section 65 of the Penal Code and punishable under s.66. The evidence I find was sufficient to constitute reasonable grounds upon which the police could and did arrest and detain the plaintiff. The Second Schedule to CPC gives the police power to arrest without warrant for sedition; hence no warrant was required.

The plaintiff has forcefully stated that he had committed no offence. But the power of arrest is there to arrest upon reasonable suspicion ‘of having committed an offence’ (vide sec 23(1)(e) of the 1997 Constitution). Unless and until the police investigate the plaintiff’s alleged involvement, they may not be able to come to any conclusion one way or the other. The rationale of this was discussed by Watkins L.J. in R v Howell [1981] 3 All E.R. 383 at 388 as follows:

"The public expects a policeman not only to apprehend the criminal but to do his best to prevent the commission of a crime, to keep the peace, in other words. To deny him, therefore, the right to arrest a person who he reasonably believes is about to breach the peace would be to disable him from preventing that which might cause serious injury to someone or even to many people or to property. The common law, we believe whilst recognising that a wrongful arrest is a serious invasion of a person’s liberty, provide the police with this power in the public interest" (emphasis mine).

In this case I find that the arrest and detention was necessary in the course of investigations. Even the Fundamental Rights and Freedoms Decree (Decree No. 7 of 2000) permits detention when in s4(1) it provides: that a person shall not be deprived of personal liberty except (a) if the person is reasonably suspected of having committed an offence’.

The learned counsel for the defendant has made an interesting point in his submission. It is this that the plaintiff’s action is pre-emptive and against public policy Barely two weeks after he was released and while investigation into his involvement was still continuing, the plaintiff instituted this civil action. I agree with counsel that this action was clearly an attempt to frustrate further investigation by the plaintiff rushing to court so quickly bearing in mind that his son was already charged for an alleged offence.

To put ‘a spanner in the works’ on the part of the plaintiff will not be allowed with a view to hampering the work of investigation by police. Lord Denning MR on this aspect stated in Wiltshire v Barrett [1965] 2 All E.R. 271 at 274 that:

"If every motorist who is acquitted is to have an unanswerable claim for damages against the police, I should think that the police would soon give up trying to arrest anyone; and that would be very bad for all of us. The police must be entitled to act on the facts as they appear to them at the time."

There is nothing of substance or merit in Mr. Fa’s arguments to persuade me to decide in favour of the plaintiff bearing in mind the facts of this case and the law on the subject. ‘The power to strike out any pleading or any part of pleading under this rule is not mandatory, but permissive, and so confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending plea: (Carl Zeiss Stiftung v Rayner and Keeler Ltd (No.3) [1970] Ch 506). This statement of principle I have borne in mind in coming to the decision in this case.

One other matter was raised by the defendant and that was in regard to the ‘title’ of the claim, namely, being intituled ‘Attorney General of Fiji who is being sued in a representative capacity on behalf of the Police, District Administration Rotuma, the Rotuma Magistracy and the Rotuma Island Council’. Mr. Adamu submits that this action cannot be maintained against the Attorney-General (vide Litiwai Setevano v the Attorney-General 1995 41 FLR 135 High Court of Fiji). Mr. Fa concedes that it should be intituled ‘Attorney-General for Police and District Administration’.

Be that as it may, on this aspect it is not necessary for me to decide in view of the order which I propose to make on the defendant’s application.

To conclude, for the above reasons I allow the defendant’s application and hold that the plaintiff’s action is an abuse of the process of the court.

I therefore order that the Statement of Claim in this action be struck out with costs against the plaintiff in the sum of $200.00.

D. Pathik
Judge

At Suva
18 July 2001