Radrodro v Commissioner of Police [2014] FJHC 151; HBC03.2012 (12 March 2014)

IN THE HIGH COURT OF FIJI
(WESTERN DIVISION) AT LAUTOKA

Civil Appeal No. HBC 03 of 2012

BETWEEN:

PAULO MALO RADRODRO of Lot 45, V.M. Pillay Road, Lautoka
APPELLANT

AND:

THE COMMISSIONER OF POLICE, Vinod Patel Plaza, Centerpoint, Nasinu.
RESPONDENT

Appearances: Appellant: in person
: Mr J. Pickering for Respondent

JUDGEMENT

1. This appeal is lodged against Ruling delivered by the Learned Master of the High Court Lautoka on 17th January, 2012.

Notice of Appeal and ground of appeal field on 31st January 2012.

2. The grounds of appeal stated

(i) The Learned Master erred in his Ruling in Civil Action 151 of 2011 in that he had considered case authorities which does not relate or which does not have parallel application to his situation.

(ii) The Learned Master erred in that he had not considered Section 5,7(1) and 17 (3) of the Police Act; the police had breached their duty by being negligent on the Appellants report.

3. The Respondent has filed an affidavit in opposition and the Appellant an affidavit in reply. Both parties have filled written submissions before the date of hearing.

4. When the matter came up for hearing the Appellant made oral submissions and the Respondents Counsel Submissions in reply.

5. Background of Civil action 151 of 2011

(i) The Plaintiff is alleging breach of duty, defamation and "aiding and abetting" on the part of Lautoka Police. He has claimed that his house was burgled on several occasions and that his scientific discoveries stolen.

(ii) The Plaintiff had stated that police never bothered to investigate any of his complaints that he lodged between 2005 to 2011.

(iii) The Plaintiff claims that the police breached their duty in failing to investigate any of this complaints.

6. When the originating summons were served on the defendants in the said Civil Action 151 of 2011 the officer of the Attorney General's office in Lautoka had sought an order to strike out the Plaintiff's claim on the ground that it discloses no reasonable cause of action and that the claim is an abuse of process. The application made pursuant to Order 18 Rule 18 (1) (a) and (d) of the High Court Rules 1998 and under the inherent jurisdiction of the Court.

7. Having considered submissions of both parties on the said application the Learned Master had struck out the Plaintiffs claim as disclosing no reasonable cause of action by his Ruling of 17th January 2012 and this appeal is lodged by the appellant against it.

8. The issues to be considered in this matter are as follows:

(a) Whether the Learned master considered case authorities which does not relate to the Appellants case.

(b) Whether the Learned Master erred in that he had not considered section 5, 7 (1) and 17(3) of the Police act.

9. Analysis
The Appellant position is that the case authority cited by the Learned Master refers to one crime, whereas in the Appellants case there were numerous crimes of the same nature committed over a period of several years. Therefore the authority cited is not relevant to his case.

10. The Learned Master has cited the following cases in his ruling

i) Len Lindon v The Commonwealth of Australia (No 2) s 96/2002

ii) Hill v Chief Constable of West Yorkshore [1988] 1 All E R 238

11. Len Lindon case has bee cited to summarise the applicable principles of striking out.

12. Hill vs Chief Constable of West Yorkshire has been cited to clarify Principals relating to the duty of care the Police Officers owe to the general public by common law who suffer injury to person or property through criminal activities and the chief officer's wide discretion as to the manner in which the duty is to be discharged.

13. Whether the appellant was the victim of one criminal act or several criminal acts, the case cited by the Learned Master is relevant to it as it discuses the principals of duty of care the police owe to the general public who are victims of criminal acts and the discretion the Police officers have in taking action on such occasions.

14. Therefore, I am not agreeing with the Appellants position that the Learned Master has considered irrelevant Judgements in his ruling.

15. Next issue to be considered is whether the Learned master erred in that he had not considered that under the Police Act section 5, 7(1) and 17 (3) the Police had breached their duty by being negligent on the appellants report.

16. I will now consider the provisions in Sections 5, 7(1) and 17(3)
Section 5 of the Police Act [Cap 85] states:

"..................The Force shall be employed in and throughout Fiji for the maintenance of law and order, the preservation of the peace, the protection of life and property, the prevention and detection of crime and the enforcement of all laws and regulations with which it is directly charged; and shall be entitled for the performance of any duties to carry arms..........."

Section 7(1) of the Police Act states:

".................... The Commissioner shall have the command, superintendence and direction of the Force and, subject to the provisions of this Act and to the directions of the Minister, may make orders for the general government of police officers in relation to their training, arms, clothing, equipment and other accoutrements, and particular services, as well as their distribution and inspection, and such other orders as he may deem expedient for preventing negligence and promoting efficiency and discipline on the part of police officers in the charge of their duties................"

Section 17 (3) states:

".............It shall be the duty of every police officer promptly to obey and execute all order and warrants lawfully issued to him by any competent authority, to collect and communicate intelligence affecting the public peace, to prevent the commission of offences and public nuisances, to detect and bring offenders to justice, and to apprehend all persons whom he is legally authorised to apprehend and for whose apprehension sufficient ground exists............"

17. The above provisions states for what purpose the Police Force in Fiji is formed, the powers the Commissioner shall have over the police force and the duties of the police officers etc;

18. The Learned Master has cited passages from the case of Hill v Chief Constable of West Yorkshire in considering the nature of the duty of care Police owe to the public that suffer injury to person or property through criminal activities and the Chief officers wide discretion as to the manner in which that duty is to be discharged.

19. Paragraph 10 of the Learned Masters Ruling deals with the duty of care the police owe to the public who are victims of Criminal activities and paragraph 12 states why the police have formed a view about the appellant.

20. Therefore I am of the view that the Learned Master has considered the relevant provisions of the Police act in coming to his finding and that he has not erred in Law as alleged by the Appellant.

21. Furthermore, the police act does not provide any right of action for the breach of a statutory duty under the act.

22. In the case of Sukhlal Holdings Limited vs Ram Chand, Bainimarama, Savua, Ministry of Home Affairs and Immigration, Attorney General HBC 376 of 2003 the Court held that:

"................... No general duty of care is owed either by the police or the Armed Forces to the Public at large and on the absence of special circumstances no action on negligence lies against them......................"

23. Therefore, I am of the view that the allegation of breach of statutory duty by the police raised by the plaintiff is misconceived and that the Learned Master has considered the provision of the Police act in his ruling.

24. Accordingly, I make the following order.

(a) The appeal is dismissed.

(b) The Appellant is ordered to pay the Respondent's costs which are summarily in the sum of $750.00

L.S. Abeygunaratne
Judge

12/03/2014