Taroga v Attorney General [2015] FJHC 339; HBC88.2002 (8 May 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 88 of 2002

BETWEEN:

IOWANE TAROGA
of Lot 113, Vishnu Deo Road, Nakasi
Plaintiff

AND:

ATTORNEY GENERAL
of Suvavou House, Suva
First Defendant

AND:

COMMISSIONER OF POLICE
Second Defendant

Appearance: Mr O'Driscoll of O'Driscoll & Co. for the Plaintiff
Mr Raramasi S of AG's Chambers for the Defendants

Date of Judgment: 8 May 2015

JUDGMENT

[1] This matter was first called before me on 23 September 2012 for further proceedings. Prior to that, last call date was 29 November 2006 before Coventry J. Mr O'Driscoll appeared for the Plaintiff and stated this matter was not taken up for a long period of time due to numerous reasons and now the matters are finalized. As such the matter to be taken up in terms of the originating summons dated 29 May 2002.

[2] When the matter was taken up on 3rd October 2012, Mr O'Driscoll appeared for the Plaintiff, Mr S Raramasi Legal Officer appeared for Defendants and revealed that a Supplementary Affidavit dated 26 September 2012 was filed by the Plaintiff and the direction was given to the Defendants' counsel to file an Affidavit in Response which was not filed until the matter was taken up for hearing on 12 August 2013.

[3] 3.1 At the hearing, the Plaintiff's counsel referred to the Affidavits filed in this case. The case proceeded on the amended originating summons dated 29 May 2002.

3.2 By the amended originating summons dated 29 May 2002, the Plaintiff sought the following Orders:

1. An ORDER that the Plaintiff be paid all salary arrears and other emoluments from the 28th day of February 1993 to the Plaintiff's retiring age of 55 years amount to $186,090.00, including FNPF contribution.

(a) A further ORDER that the Defendant pay to the Plaintiff an amount for compensation to be assessed by the court for pain and suffering inclusive of pain and suffering occasioned by his incarceration of nearly 4 years before the latest Fiji Court of Appeal finding and the DPP's entering a nolle.

(b) A further ORDER be issued to the Minister, Ministry of Finance, to divert any monetary emolument, under the principles of garnishee, that may be payable to the second defendant upon his retirement on medical grounds or on any other grounds and pay the same to the Plaintiff for acts of incompetence, dereliction of duty, and inattention to details in not properly, considering the Plaintiff's prosecution for murder and whether such a prosecution was warranted or justified given the fact that the Plaintiff was acting in the course of his official duties in trying to apprehend an armed person with previous convictions for robbery with violence.

(c) A Declaration that the criminal prosecution of the Plaintiff, which was quashed by the Fiji Court of Appeal on two occasions and over which the Director of Public Prosecution entered a nolle, was unwarranted, unjustified and malicious.

(d) A further Declaration that the Second Defendant and those officers handling this case acted with negligence, incompetence, and sloth to such an extent that their conducts amounted to abuse of office and in violation of Section 33 (3) of the 1997 Constitution, and also in violation of the general principles of law requiring them and other institutions handling the termination of the Plaintiff's employment to give him an opportunity to address them on the question of penalty.

(e) Such other Order or Orders or Relief this Court deems just and proper.

(f) Cost of this application.

[4] The counsel referred to the Supplementary Affidavit filed on 27 September 2012 deposed by the Plaintiff on 26 September 2012 which states inter alia:

4.1. That the matter was delayed due to filing Action No. HBM 32 of 2005. By this action the Plaintiff sought to represent at a Disciplinary Tribunal relative to the same issue of the suspension of his services from the Fiji Police Force.

4.2. The said Action No. 32 of 2005 was withdrawn when it was confirmed to the Plaintiff that there was no Disciplinary Tribunal convened since there was a murder charge pending against him. The Plaintiff annexed the letter dated 24 November 2011 by the Fiji Police Force marked "IT1" in response to the letter of Legal Officer of the AG's Department dated 8 November 2011 confirming that there was no Tribunal Proceedings against Iowane Taroga, the Plaintiff. However, the Plaintiff stated there was a Tribunal at that time and it was established by the documents filed in HBM 32 of 2005.

4.3 The Plaintiff also stated that the letter marked "IT1" was provided to his solicitor in January 2012 and then this action was reactivated which was stayed from 2005 due to the Miscellaneous Action No. 35 of 2005.

4.4 It was stated when both actions were on foot, the Plaintiff was reinstated to the Fiji Police Force in 2007 by a letter dated 27 June 2007 marked as "IT2".

4.5 Thereafter, the Plaintiff stated at the time of his reinstatement the disciplinary tribunal was a live issue and no information received by him with regard to same and was informed miscellaneous action was pending and it would be resolved.

4.6 The Plaintiff annexed a letter dated 28 April 1022 marked "IT3" which refers to a letter from the Prime Minister's Office and he was interdicted with effect from 26.04.2011 pending investigation.

4.7 The Plaintiff annexed the letter dated 21.11.2011 addressed to the UN High Commissioner for Human Rights marked "IT4" explaining what led to his interdiction in 2011, which is not relevant to this case.

4.8 The Plaintiff's solicitor sent the letter dated 20.12.2011 and the representative of the Defendants gave the letter marked "IT1" to the Plaintiff.

4.9 The Plaintiff further stated period of suspension was from the date stated in the originating summons of this case up to the date of the reinstatement on 27 June 2007 and after 28.04.2011.

4.10 The Plaintiff stated he was advised by his solicitor that the Police Act provides for his pay while on suspension up to and including 27 June 2007 has to be paid. Since the recent interdiction cannot be determined because there is no outcome of the previous interdiction.

[5] 5.1 The Plaintiff's counsel referred to the Section 28of the Police Act in his submission which states:

"28. – (1) The Commissioner may interdict from duty any inspectorate officer or subordinate officer pending the trial of any offence, whether under the provisions of this Act or before a court, and pending the determination of any appeal.

(2) A police officer interdicted from duty under the provisions of this section shall not by reason of such interdiction cease to be a police officer:

Provided that the powers, privileges and benefits vested in him as a police officer shall during his interdiction be in abeyance but he shall continue subject to the same responsibilities, discipline and penalties and to the same authority as if he had not been interdicted.

(3) A police officer interdicted from duty under the provisions of this section shall not be paid any salary or any amount in compensation for loss of earnings in respect of a period of interdiction unless the Commissioner otherwise directs or he is acquitted of the offence".

The counsel submitted terms of the Section 28(3) the Plaintiff was acquitted in the year 2001 and he is entitled for his salary up to his reinstatement in 2007.

Referring to the paragraph 20 and 21 of the Plaintiff's Affidavit counsel submitted that the payment and wages he claimed is up to 2020 (the date of retirement) now it should be up to 2007 from the date of interdiction for the reason that the Plaintiff was reinstated on 26 June 2007 and he is entitled for the compensation, prior to 2007.

[6] Mr Raramasi made submissions on behalf of the Defendants and stated:

6.1 "Nolle prosequi" entered against the Plaintiff does not amount to an acquittal and the Section 28(3) of the Police Act does not apply.

6.2 It was submitted that referring to the paragraphs 22, 23, 24, 25, 26 and 30, 31, 32 of the Affidavit dated 24/6/2002 that the Plaintiff is not acquitted within the terms in Section 28(3) of the Police Act.

6.3 At this point the Plaintiff's counsel stated his claim is under the paragraph (a) of the originating summons filed on 30 May 2002 which states:

"(a) A further ORDER that the Defendants pay to the Plaintiff an amount for compensation to be assessed by the court for pain and suffering inclusive pain and suffering occasioned by his incarceration of nearly 4 years before the Fiji Court of Appeal finding and the DPP's entering nolle".

6.4 The Defendants' counsel continuing his submissions stated the nolle was entered under Section 201 of the Criminal Procedure Code which states:

"201 – (1) The prosecutor may with the consent of the court at any time before a final order is passed in any case under this. Part withdraw the complaint.

(2) On any withdrawal as aforesaid –

. (a) where the withdrawal is made after the accused person is called upon to make his defence, the court shall acquit the accused;

(b) where the withdrawal is made before the accused person is called upon to make his defence, the court shall subject to the provisions of Section 210, in its discretion make one or other of the following orders –

(i) an order acquitting the accused;

(ii) an order discharging the accused.

(3) An order discharging the accused under paragraph (b) (ii) of subsection (2) shall not operate as a bar to subsequent proceedings against the accused person on account of the same facts. (Section substituted by 24 of 1950, s. 11)".

[7] Analysis and Determination

The issues to be decided in this case are:

(a) As to whether the Nolle Prosequi entered by the DPP in the Court of Appeal amounts to an acquittal under Section 28(3) of the Police Act?

(b) If so, as to whether the Plaintiff is entitled to compensation?

This matter was filed in 2002 and the proceedings were not in foot since 2006 up to 2012. I also considered the Supplementary Affidavit filed by the Plaintiff on 27 September 2012, which is relevant to make determination in this case. The Defendants' were directed on 3rd October 2012 to file an Affidavit in Response before 17 October 2012. The matter was taken up for hearing on 12 August 2013 after 10 months from 3rd October 2012 and no Affidavit in Response was filed by the Defendants or no application was made before this court to grant extension of time until the matter was taken up for hearing on 12 August 2013. The submission made by the counsel for the Defendants was restricted to the period before the filing of the Plaintiff's Affidavit on 27 September 2012. Hence Defendants' counsel failed to challenge the facts deposed in the said affidavit of the Plaintiff.

[8] I reproduce the letter dated 27 June 2007 marked as "IT2", which is the main basis of my determination:

"76/432

Mr. Salakubou Vunivalu

Principal Legal Officer

Solicitor General's Office

Suvavou House

SUVA

Dear Sir,

IOWANE TURAGA v COMPOL, HBM 32/2005

1. I write to acknowledge receipt of your letter dated 08 November 2011 addressed to the Commissioner of Police regarding the above mentioned subject.

2. Please be advised that checks have been made through our system likewise seeking confirmation from OC National Tribunal in respect to the mentioned tribunal proceedings. There is no proof that there was a tribunal proceedings convened against the said officer during the time he was charged for murder.

3. Currently, he has been interdicted without pay since 26 April 2011 vide VRO 17/11 in an alleged case of Drunk and Drive in Nausori.

Respectfully informed.

________________

I LIGAIRI

Deputy Commissioner of Police

for Commissioner of Police

24 November 2011"

The above letter was sent by the Deputy Commissioner of Police to Salakubou Vunivalu, Principal Legal Officer of the Solicitor General's Office. What does the said letter stated that there was no Disciplinary Tribunal procedure on foot at the time the Plaintiff was charged for murder. The Defendants' counsel did not address this issue in his submissions. This led the Plaintiff to withdraw the Case No. 32 of 2005 which was filed seeking to have representation at the Disciplinary Tribunal inquiry. I accept the position taken up by the Plaintiff.

[9] It is also evident by the letter dated 27/6/2007 marked as "IT2" to the Affidavit of the Plaintiff states:

"As a result of the court proceedings culminating in the Court of Appeal's Decision of 24/2/2000 and the subsequent decision of the Director Public Prosecutions to file a Nolle Prosequi in your case, I am pleased to inform you that Acting Commissioner of Police has approved your re-instatement into the Fiji Police Service.

You are hereby re-instated as a Police Constable (PC) on salary of $10,709.00 per annum being the minimum level of salary grade PL07 ($10,709-$13,458), with effect from Wednesday 26th June 2007".

The above contents of the letter nullify the position taken up by the 2nd Defendant in the Affidavit dated 24 June 2002 and I reject the submissions made by the counsel for the Plaintiff citing certain paragraphs of the said affidavit. I conclude that the Plaintiff was interdicted on the 28th February 1994 and reinstated on 26 June 2007 and he is entitled for the arrears of his emoluments for the said period as compensation. The interdiction effected on the Plaintiff on 26 April 2011 has no effect on the reinstatement or the payment of emoluments.

[10] I further conclude there is no merits on the argument by the counsel to the effect that nolle prosequi is not an acquittal. It is contrary to the position taken up by the Defendants by their letter marked "IT2".

[11] The Defendants reinstated the Plaintiff on 26 June 2007 and again interdicted on 26 April 2011, and the circumstances for the subsequent interdiction cannot be taken into account for the interdiction prior to 26 June 2007. "IT2" states the word 'reinstatement' and it is important to consider what reinstatement means. Reinstatement in employment law refers to placing a worker back in a job he has lost without loss of seniority or other job benefits. Reinstatement does not denote the employee was taken back as a new employee. It is a continuation of the employment he already held. I conclude that the Plaintiff's emoluments, benefits should be paid on this basis.

[12] Although, the court granted time for the Defendants to file an Affidavit in Reply to the Supplementary Affidavit filed by Plaintiff on 27 September 2012, he failed to do so. The counsel who appeared for the Defendants failed to make any submissions on the Affidavit and Annexures "IT1" and "IT2" which are crucial to the determination of this case. He addressed the court only on the Affidavit filed by the Defendants 13 years back which resembles incompetency of the counsel and/or that he had no explanation. I hold with the Plaintiff.

[13] I also note that justice for the Plaintiff was denied by inaction of the Defendants. If the nolle prosequi is not an acquittal, why the disciplinary procedure had not taken place? The conduct of the 2nd Defendant is unacceptable in any norms.

[14] I agree with the Defendants' counsel that nolle prosequi is not an acquittal. However, in the circumstances of this particular case entering nolle prosequi amounts to acquittal to apply the terms of Section 28(3) of the Police Act:

1. Nolle Prosequi was entered on 10 April 2001 and no steps taken to re-indict the Plaintiff.

2. "IT2" clearly elaborates when the reinstatement was effected entering of Nolle prosequi was taken as an acquittal since there was no disciplinary tribunal proceedings against the Plaintiff.

14.1 Accordingly, I make the following Orders:

1. The Defendants are ordered to pay all emoluments and benefits entitled to the Plaintiff for the period effective from 28/2/1994 to 25 June 2007 and the said payment should be calculated and paid to the Plaintiff within 30days of this Judgment.

2. The Defendants are ordered to pay $2,500.00 costs summarily assessed to the Plaintiff.

Delivered at Suva this 8th Day of May 2015.

C. KOTIGALAGE
JUDGE