Bamleett v Kumar [2011] FJHC 37; HBC 386.2009 (8 February 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 386 of 2009

BETWEEN:

DOUGLAS BAMLEETT and ROWENA GRACE CROSS (also known as Grace Bamlett) both of Ocean Pacific Road, Wainadoi, Navua, in the Republic of Fiji Islands, both Company Directors.
Plaintiff

AND:

INSPECTOR SHAILESH KUMAR of the Anti-Money Laundering Unit, CID, Suva.
First Defendant

AND:

ASSISTANT SUPERINTENDENT OF POLICE PURAN LAL of the Anti-Money Laundering Unit, CID, Suva.
Second Defendant

AND:

SERGEANT AIYAZ ALI of the Anti-Money Laundering Unit, CID, Suva.
Third Defendant

AND:

THE COMMISSIONER OF POLICE of Level 4, Government Building, Suva.
Fourth Defendant

AND:

ATTORNEY GENERAL OF FIJI of Level 6-7, Suvavou House, Victoria Parade, Suva.
Fifth Defendant

AND:

DIANA GIESBRECHT of 25 Hutson Street, Suva in the Republic of Fiji, Lecturer.
Sixth Defendant

Before: Master Anare Tuilevuka
Counsels: FA & Co.
Office of the Attorney-General

Date of Ruling: 08th February 2011

RULING

[1]. Before me is a summons to strike out the writ of summons by the 4th, 5th and 6th defendants dated 29th December 2009 on the grounds that it discloses no cause of action, is scandalous, frivolous or vexatious; and is an abuse of process. The application is filed pursuant to Order 18 Rule 18 (1) (a) (b) and (d) of the High Court Rules. It is supported by the affidavit of Senior Superintendent Adi Sen, the Director of the Criminal Investigation Department.

[2]. The plaintiffs came under police investigation in 2007. At that time, they were residents of Wainadoi in Navua. The police investigations were prompted by a complaint of the 6th defendant against the plaintiffs. The 6th defendant alleged that the plaintiffs had reneged on some contractual obligation to pay to the 6th defendant a 20% annual dividend on a sum of US$50,960.80 which the 6th defendant had invested into a company/business owned by the 1st plaintiff in Vanuatu. Fraud was also alleged against the plaintiffs. This aroused police interest and sparked an investigation by the police Anti-Money Laundering Unit headed by the 1st defendant. The investigations included a police-raid and search of the plaintiffs’ house in Navua. These operations resulted in the police seizing some documents and personal belongings.

[3]. It is the conduct of the police officers who carried out the raid and house search that is the target of the plaintiff’s allegations and claim.

[4]. According to the plaintiffs, the defendants raided and searched their (plaintiffs’) house on the 11th of October 2007, the 2nd of September 2008, and on the 4th and 14th of September 2009. The plaintiffs also allege that on these occasions, they were harassed and threatened by the defendants. Words were uttered calculated to cause and actually did cause physical and emotional injury to the plaintiffs. The alleged words and threats are itemized in paragraphs 6 (i) to (v). The plaintiffs say that they suffered distress, anxiety, shock, fear, severe dehydration, some respiratory infections and humiliation and wounded pride as a result of the defendants’ conduct. They also say that the defendants’ conduct amounted to assault in that it caused them to apprehend immediate violence. It is alleged amongst other things that the defendants threatened to put the plaintiffs in prison and in fact placed the 2nd plaintiff on a travel ban if they did not cooperate.

[5]. The plaintiffs also plead “conversion” against the defendants.

[6]. The defendants refute all the plaintiffs’ allegations. Their side of the story is that everything they did in the course of their raid and search and seizure was founded on the 6th defendant’s complaint and pursuant to a lawful search warrant issued by a Magistrate. Their suspicions were well founded. They specifically deny allegations that they harassed, threatened or assaulted the plaintiffs on any occasion. And as regards the allegation of conversion the defendants rely on section 106 of the Criminal Procedure Code (Cap 21).

[7]. I gather that the Director of Public Prosecutions has since laid charges against the plaintiffs late last year. None of the lawyers made submissions on this point because, at the hearing of this case, the DPP’s office was still considering laying charges. In any event, the laying of charges has no relevance to what is before me now.

[8]. The jurisdiction to strike out proceedings under Order 18 Rule 18 is only exercised in cases where, on the pleaded facts, the court is of the view that the plaintiff could not succeed as a matter of law. It is not exercised if the pleadings do raise legal questions of importance, or where the cause of action pleaded is so clearly untenable that they cannot possibly succeed (see Attorney General –v- Shiu Prasad Halka 18 FLR 210 at 215, as per Justice Gould VP; see also New Zealand Court of Appeal decision in Attorney -v- Prince Gardner [1998] 1 NZLR 262 at 267). The policy reason why this jurisdiction is sparingly exercised is captured in the following comments of Mr. Justice Kirby in Len Lindon -v- The Commonwealth of Australia (No. 2) S. 96/005:-

1. it is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided.

2. to secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action ....or is advancing a claim that is clearly frivolous or vexatious...

3. an opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination......Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.

4. summary relief of the kind provided for by O 26 r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer....... If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.

5. if, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading ......A question has arisen as to whether O 26 r 18 applies to part only of a pleading

6. The guiding principle is, as stated in O 26 r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

[9]. The law must presume the defendant officers to perform in accordance with the law the raid, the searches and the seizure which they carried out. So – it is on the plaintiff to prove otherwise at the trial.

[10]. The causes of action pleaded are based on an allegation that what the police did on the occasions in question in fact went beyond what the law permitted them to do. The triable issues raised is whether or not the plaintiffs were subjected to harassment, threats, assault and false imprisonment in the hands of police in the course of the raid and search and whether their conduct fell within the protection afforded by the search warrant, the relevant legislation, and also the common law.

[11]. The defendants' counsel has cited various case authorities all of which endorse the wide protection to police officers in their duty to investigate and suppress crimes and to seize and keep goods in respect of which there is a reasonable suspicion that an offence has been committed (see Hill v Chief Constable of West Yorkshire [1987] UKHL 12; (1988) 2 ALL E.R. 238; Chief Constable of Northumbria v Costello (1999) 11 Admin L.R. 81; Tiara Enterprises Ltd v A-G [2009] FJHC 155; HBC 418 of 1997 (29th July 2009) and Crystal Clear Video Ltd v Commissioner of Police [1988] FJHC 1; [1988] SPLR 130 (22 July 1988); R v Zotti [2002] SASC 164 (24 May 2002; Bainivalu v Fiji Police Force [2004] FJHC 286).

[12]. But, none of these judgments sanctions the view that the police officer will also be protected from all assaults, false imprisonment, harassment, and threats carried out in the course of investigation.

[13]. In my view, the weight of authorities place a somewhat heavy burden on the plaintiffs to prove their case, but even a weak case is entitled to the time of the court (as per Kirby J in Len Lindon).

[14]. Accordingly – I dismiss the application. Costs in the cause. Further pre-trial directions are to be given by Master Amaratunga.

Anare Tuilevuka
Master

At Suva
08th of February 2011.