Jamakana v Attorney-General [1983] SBHC 39; [1985] LRC 569 (31 May 1983)

[1985] LRC 569

HIGH COURT OF SOLOMON ISLANDS

JAMAKANA

v

ATTORNEY-GENERAL AND ANOTHER

(Daly, C.J.)

31st May 1983

(1) Constitutional law - Fundamental rights - Deprivation of personal liberty - Constitution of Solomon Islands section 5.

(2) Constitutional law - Fundamental rights - Deprivation of freedom of movement Constitution of Solomon Islands, section 14.

(3) Constitutional law - Fundamental rights - Compensation for contravention - Measure of compensation - Whether exemplary damages should be awarded - Against whom should compensation be awarded.

The applicant, Frank Jamakana, the chairman of a timber corporation, was prevented for a period from leaving the Solomon Islands by immigration officers acting on the instructions of the second respondent while the latter was acting as Minister for Police and Justice. In issuing the instruction, the second respondent referred to an investigation into the corporation's financial position. Subsequently the ban was lifted and an apology offered by a senior official. The applicant applied to the High Court for declarations that the direction made by the second respondent and the consequential acts by police and immigration officers were in breach of the applicant's fundamental rights under Chapter II of the Constitution of the Solomon Islands and for compensation for these contraventions.

HELD: Declarations granted and orders for compensation made accordingly.

(1) An order which restricted the applicant to the Solomon Islands in a manner not authorised by any law amounted to a deprivation of personal liberty in contravention of section 5 of the Constitution.

(2) The prevention of the applicant from boarding an aircraft in order to leave the Solomon Islands amounted to a deprivation of his "right to move freely throughout Solomon Islands" as protected by section 14 of the Constitution even though the section contained no express provision protecting the right to leave the Solomon Islands.

(3) The measure of "compensation" awarded in terms of section 17 of the Constitution should exclude any award for exemplary damages but the compensation was assessable "at large" in that regard should be had to h any aggravating features in the way that the contravention of the constitutional rights of the applicant took place: Attorney-General of St Christopher, Nevis and Anguilla v Reynolds [1980] 2 WLR 171 and dictum of Lord Hailsham in Cassel Co Ltd v Broome [1972] UKHL 3; [1972] 1 All ER 801 followed. In the exercise of the discretion granted under section 18(2) of the Constitution to make orders for compensation, separate awards may be made against persons alleged to have contravened the applicant's constitutional rights where necessary to secure the enforcement of the protective provisions of the Constitution. In all the circumstances, the proper compensation was $5000.00 for the contravention on behalf of the Government which had implemented over a period of time a direction itself entirely without legal justification and $2000.00 payable personally by the second respondent who had made no genuine effort to abide by the Constitution and by the law.

Cases referred to in judgment:
Attorney-General of St Christopher, Nevis and Anguilla v Reynolds [1980] 2 WLR 171, [1979] 3 All ER 129, PC
Australian Consolidated Press v Uren [1969] 1 AC 590; [1967] 3 WLR 1338, [1967] 3 All ER 523, PC
Cassel Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027, [1972] 2 WLR 645, [1972] 1 All ER 801, HL
Conga v Solomon Taiyo Ltd [1980-81] SILR 239
Maharaj v Attorney-General of Trinidad and Tobago (No. 2) [1978] UKPC 3; [1979] AC 385, [1978] 2 WLR 902, [1978] 2 All ER 670, PC
Praed v Graham [1889] UKLawRpKQB 176; (1840) 24 QBD 53, 59 LJQB 230, 38 WR 103 C
Rookes v Barnard [1964] UKHL 1; [1964] AC 1129, [1964] 2 WLR 269, [1964] 1 All ER 367, HL
Taylor v Beere [1982] NZCA 15; [1982] 1 NZLR 81
West, H & Son v Shepherd [1963] UKHL 3; [1964] AC 326, [1963] 2 WLR 1359 [1963] 2 All ER 625, HL

Constitutions referred to in judgment:
Fiji 1970
Kiribati 1979
Solomon Islands 1978

Other sources referred to in judgment:
11 Halsbury's Laws (3rd edition) 223

Application
Frank Jamakana applied for declarations and orders under section 18 of the Constitution of the Solomon Islands. The facts are set out in the judgment.

31st May 1983

DALY, C.J.:

In this case the applicant (Frank Jamakana) alleges breaches of his fundamental rights and freedoms as contained in Chapter II of the Constitution. He seeks declarations from this court that there have been such breaches and asks for compensation for the contravention of his rights and freedoms. The Respondents to the action are the Government of Solomon Islands represented by the learned Attorney-General ("the First Respondent") and the Honourable George Talasasa ("the Second Respondent"). The Second Respondent is a Minister of the Cabinet for Solomon Islands and was, at the material time, responsible for the administration of the departments of Police and Justice in the temporary absence of the substantive minister.

The case arises in this way. Mr. Jamakana was from September 1979 to June 1982 the Chairman of the North New Georgia Timber Corporation ("the Corporation"). The Corporation is a body which, although created by Act of Parliament, is a private corporation not subject to Government Control. The Corporation is concerned, as its statute shows, with the receipt and distribution of royalties accruing to the residents of North New Georgia as a result of timber operations carried on there. Mr. Jamakana was also liaison officer with the Corporation and this appointment came to an end a little later, that is, in December 1982.

In March 1982 Mr. Jamakana decided to take a holiday and went to Papua. New Guinea. Due to certain incidents in North New Georgia, Mr. Jamakana cut short his holiday by two weeks and returned to Solomon Islands. In June 1982 he decided to complete his holiday and in August 1982 he made a booking to travel to Kieta by Air Niugini on 13th October, 1982.

However in August 1982 Mr. Jamakana had an unannounced visit to his office in Munda from the Senior Immigration Officer, a Mr. Malai. This officer told Mr. Jamakana that he was "banned and not allowed to travel outside Solomon Islands". No written authority was given or shown for this statement, but Mr. Jamakana was told that the ban was imposed by the Second Respondent when he was acting Minister of Police and Justice in one week in 1982.

Mr. Jamakana mentioned his booking in October to the Immigration Officer and was told that his file would be reviewed and action taken when the Immigration Officer returned to Honiara.

But nothing more was heard. So Mr. Jamakana came to Honiara in early October. He was told by the Senior Immigration Officer that his file had not been looked at and no action had been taken. "That means" said the Immigration Officer to Mr. Jamakana "You cannot leave".

On this same visit Mr. Jamakana saw the Second Respondent and spoke to him about the ban. The Second Respondent replied:

"Frank, just forget about it. I will lift it and then we will come back to square one. I am just worrying all about the troubles going on with N.N.G.T.C. and - it will be a pity if you leave the country and there is no one to speak for the Corporation."

Mr. Jamakana told the Second Respondent that he considered it to be something personal.

In March 1983, Mr. Jamakana again decided to go to Kieta, partly to complete his holiday and partly to discuss a business prospect with some people in Rabaul concerning shell money. Mr. Jamakana arrived at Munda Airport on the 9th March 1983 to catch his flight. He was filling out an embarkation card when he was spoken to by an immigration officer and a policeman. They told Mr. Jamakana that he was not allowed to travel and that "they had to obey the rule". In these circumstances the ban, as one would expect, became public knowledge.

Mr. Jamakana flew immediately to Honiara. He saw the Permanent Secretary of the Ministry of Police and Justice on the 10th March 1983 and gave him a letter setting out his difficulties at Munda Airport. On 11th March 1983 the Permanent Secretary issued a letter cancelling the ban and handed a copy to Mr. Jamakana. The Permanent Secretary also wrote to Mr. Jamakana offering his apologies for the inconvenience caused.

How then did this "ban", as it has been called, come about? The Second Respondent accepts that he imposed the ban. What he said happened is that in his official capacity as Minister for Employment, Youth and Social Development he received a letter dated 2nd June 1982 from a Director of a the Corporation who also represents the Koroqo Tribal Board. By what the Second Respondent describes as a coincidence, the writer of the letter, Mr. Ian K. Talasasa, is also the Second Respondent's brother. The Second Respondent also has interests in land in North New Georgia. The letter is expressed to be written on behalf of "my Tribal leaders and fellow Directors of the North New Georgia Timber Corporation". I shall not set out the letter in full as it contains allegations of a serious nature which, as far as this court is aware, have never been investigated or substantiated. They concern alleged misuse of the funds of the corporation and departure from the country when it was not in the interests of the Corporation for the Chairman to so depart. The final paragraph of the letter ends:

"Again, it is also requested that Frank Jamakana be temporarily banned from travelling overseas at this crucial period".

By what is said to be another coincidence a short time after receipt of this letter the Second Respondent became Minister responsible for the departments of police and justice. Whilst so responsible he signed the following memorandum on 24th June 1982:

“To: Senior Immigration Officer, Immigration Department, Rove.

MR. FRANK JAMAKANA

The North New Georgia Timber Corporation Board requested that the above person be not allowed to leave the country until the Auditor's findings on the Corporation's financial position is completed.

2. I, therefore, direct that all Immigration Officers throughout the country be informed and carry out the request.

(Hon, G. Talasasa)

Minister for Police and Justice (Acting)”

The Senior Immigration Officer advised his officers of this memorandum with the results I have already set out.

Was there, then, in those circumstances a contravention of the fundamental rights and freedoms of Mr. Jamakana? Those rights and freedoms are set out in Chapter 11 of the Constitution. Section 5 protects the right to personal liberty. Subsection (1) commences:

"No person shall be deprived of his personal liberty save as may be authorized by law in any of the following cases . . ."

The section then states the cases in which the law may authorize such deprivation. In this case it is said that Mr. Jamakana was deprived of his personal liberty by an order which restricted him to Solomon Islands. This is, indeed, a deprivation of personal liberty and there is no law at all which authorizes such deprivation. It follows then that there has been a contravention of Mr. Jamakana's fundamental right as contained in section 5 of the Constitution. Section 14 protects freedom of movement. Subsection (1) provides:

"(1) No person shall be deprived of his freedom of movement, and for the purposes of this section the said freedom means the right to move freely throughout Solomon Islands, the right to reside in any part of Solomon Islands, the right to enter Solomon Islands and immunity from expulsion from Solomon Islands."

Subsection (2) provides an exception in the case of lawful detention (which relates back to section 5). Subsection (3) sets out the circumstances in which the law may make provision for restriction of freedom of movement. There was some discussion of whether "freedom of movement" as defined in section 14(l) included a right to leave Solomon Islands. Counsel for the applicant drew my attention to the fact that in similar sections in the Constitutions of Kiribati and Fiji that right is expressly included in freedom of movement.

I am grateful to him for doing so. However in paragraphs (a), (b) and (g) of subsection (2) of section 14 there are included circumstances in which a law may restrict a right to leave Solomon Islands and, reading that section as a whole, in my judgment the "right to move freely throughout Solomon Islands" must include a right to board a vessel or aircraft which will cross part of Solomon Islands to reach the frontiers and cross them. In this case Mr. Jamakana's freedom of movement in this sense was restricted when he was told he could not board an Air Niugini aircraft in August and October 1982 and when he was prevented from boarding an aircraft at Munda in March 1983. It has not been argued that the statements of the Senior Immigration Officer could not constitute a deprivation and, in the circumstances of this case, I find that authoritative statements from a senior government immigration official were such that a reasonable man would act upon them in the way that Mr. Jamakana did in fact act, and that, therefore, there was a deprivation of his freedom of movement.

Although there are laws which in certain limited circumstances enable a deprivation of freedom of movement to take place, it is not suggested, nor can it be suggested, that the deprivation in this case was sanctioned by any such law. I find, therefore, that there was a contravention of the fundamental freedom of movement of Mr. Jamakana granted to him by section 14 of the Constitution.

I must therefore grant the declarations sought in paragraph (1) and (2) of the Statement which are as follows:-

"(1) a declaration that the direction made by the Second Respondent, the then acting Minister of Police and Justice, dated the 24th June 1982 to the effect that the Applicant be prohibited from leaving Solomon Islands was in breach of Sections 5 and 14 of the Constitution.

(2) A declaration that the consequential acts by the Police and Immigration Officers in preventing the Applicant from leaving Solomon Islands were in breach of Sections 5 and 14 of the Constitution."

Compensation is also sought from the First Respondent and/or the Second Respondent for these contraventions. Section 17 of the Constitution provides:

"Any person any of whose rights or freedoms under Chapter II has been contravened shall be entitled to compensation for the contravention thereof from the person or authority which contravened it".

As the contraventions have been established, the court must now decide, first, the measure of compensation to be paid and second by whom it should be paid.

As a number of other countries have similar Constitutional provisions, compensation for contravention of fundamental rights has been considered before in the Courts. But care must be given to take into account differences, however slight, in the form of the Constitutions with which the courts were concerned.

To deal with the question of the amount, or quantum, of compensation first. The courts have, of course, been assessing damages in monetary terms in civil actions for many centuries and in most countries a normal or conventional level of damages has been established in relation to most classes of wrong suffered. These wrongs are called in the law "torts". In this jurisdiction we have only recently started establishing such levels. (See Longa v Solomon Taiyo Ltd [1980-81] SILR 239.) The first question is, however, whether one should apply the same tests and considerations to the assessment of compensation under section 17 of the Constitution? The majority of the Privy Council in Maharaj v A-G of Trinidad and Tobago (No. 2) [1978] UKPC 3; [1978] 2 WLR 902 ("the Trinidad Case") thought not. In giving the majority judgment Lord Diplock in dealing with compensation as a means of redress of contravention of constitutional rights said (at pp.912, 913):

"Finally, their Lordships would say something about the measure of monetary compensation recoverable under section 6 where the contravention of the claimant's constitutional rights consists of deprivation of liberty otherwise than by due process of law. The claim is not a claim in private law for damages for the tort of false imprisonment, under which the damages recoverable are at large and would include damages for loss of reputation. It is a claim in public law for compensation for deprivation of liberty alone. Such compensation would include any loss.^, of earnings consequent on the imprisonment and recompense for the inconvenience and distress suffered by the appellant during his incarceration. Counsel for the appellant has stated that he does not intend to claim what in a case of tort would be called exemplary or punitive damages. This makes it unnecessary to express any view as to whether money compensation by way of redress under section 6(1) can ever include an exemplary or punitive award."

I must, with all respect, express a difficulty in following the distinction made in this passage between "a claim in tort for false imprisonment under which the damages are at large . . ." and "a claim in public law for deprivation of liberty alone". If the wrong done is exactly the same whether it be called "false imprisonment" or "deprivation of liberty" my own view would be that the assessment in financial terms of the results of that wrong should be the same whether referred to as "damages" or "compensation".

Indeed in many cases the words "damages" and "compensation" are clearly regarded as interchangeable (see e.g. H West & Son Ltd v Shepherd [1963] UKHL 3; [1963] 2 All ER 625 at page 631). In a powerful dissenting judgment in the Trinidad case Lord Hailsham questioned whether there was a sound analogy between compensation to be awarded for breach of constitutional rights and damages for tort and posed a number of questions (at page 922). The impression, nevertheless which I get from reading that passage is that the learned Law Lord, as he then was, could think of no alternative to such an analogy. If that is so, it is a position in which I find myself. I should add that I do not find the analogy unsound. The assessment of damages in tort, where one is dealing with non-pecuniary or general damages, is an attempt to perform the difficult and artificial task of converting into financial terms injury, loss, suffering and deprivation. As a result a number of conventions have been evolved. In dealing with deprivation of constitutional rights one is equally attempting to quantify in financial terms loss of liberty, loss of freedom of movement, loss of freedom of expression and so on. Some of these losses are closely analogous to tortious wrongs and both categories share the same difficulties of quantification and for that reason alone should share similar conventions. Indeed, the end purpose is the same; recompense for a wrong and so the method of quantification should in my view be the same.

However the Privy Council in Attorney-General of St Christopher, Nevis and Anguilla v Reynolds [1980] 2 WLR 171 ("the Anguilla Case") maintained its stand in relation to a differentiation between damages in a tort case and damages in a case of compensation under a Constitution. In that case there was a claim for both false imprisonment in tort and a claim for compensation for wrongful detention as provided in the Constitution. The facts were that there had been unlawful detention of an ex - police inspector from June 11th 1967 until August 10th 1967 in what were described as "most insanitary and humiliating conditions". The Court of first instance awarded $5000.00 damages.

The Court of Appeal increased the amount to $18,000 stating that a small sum was included as "exemplary damages". In considering the appeal against the sum awarded Lord Salmon in giving the judgment of the Council said at p.188:

"The Attorney-General relied on the last few words of the judgment which revealed that the sum awarded included "a small sum as exemplary damages". His argument was that no exemplary damages should have been awarded because compensation alone could be claimed under section 3(6) of the Constitution. This, no doubt, would be true, but for section 16(1) of the Constitution, which makes it plain that anyone seeking redress under the Constitution may do so "without prejudice to any other action with respect to the same matter which is lawfully available"; and in the present case, the plaintiff claimed (1) damages for false imprisonment, and (2) compensation pursuant to the provisions of section 3(6) of the Constitution."

The Council then discussed the question of exemplary damages on the basis, presumably, of the claim in tort for false imprisonment. Therefore the Council were taking the view that exemplary damages could not be included in an award which was expressly declared to be an award of "compensation".

This view is one which is undoubtedly supported by the English a authorities which, in modern times at least, have put exemplary damages in a defined category separated from compensatory damages. The basic principles for assessment of damages are set out in the following passage from the speech of Lord Devlin in Rookes v Barnard [1964] UKHL 1; [1964] All ER 367 at page 407:-

"It must be remembered that in many cases of tort damages are at large, that is to say, the award is not limited to the pecuniary loss that can be specifically proved. In the present case, for example, and leaving aside any question of exemplary or aggravated damages, the appellant's damages would not necessarily be confined to those which he would obtain in an action for wrongful dismissal. He can invite the jury to look at all the circumstances, the inconvenience caused to him by the change of job and the unhappiness maybe by a change of livelihood. In such a case as this, it is quite proper without any departure from the compensatory principle to award a round sum based on the pecuniary loss proved. Moreover, it is very well established that in cases where the damages are at large the jury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff's proper feelings of dignity and pride. These are matters which the jury can take into account in assessing the appropriate compensation. Indeed, when one examines the cases in which large damages have been awarded for conduct of this sort, it is not at all easy to say whether the idea of compensation or the idea of punishment has prevailed."

The learned Law Lord then went on to analyse the cases in which exemplary damages had been awarded drawing throughout a distinction between aggravated damages which are to be regarded as within the compensatory principle and exemplary damages which are "to punish and deter" (at p.407). It seems apparent, however, on reading that speech that the distinction is far from an easy one to make (see e.g. the analysis of the cases at p.412 D to G) and indeed prior to Rookes v Barnard (ab. cit.) textbook writers were known to group them together (see e.g. 11 Halsbury's Laws (3rd edition) 223 para 391: "such damages are said to be "at large" and, further, have been called exemplary, inactive, penal, punitive, aggravated, or retributory").

Rookes v Barnard was not greeted with great enthusiasm in the Commonwealth. In Australia, as Australian Consolidated Press v Uren [1967] 1 All ER 523 demonstrates, the Australian courts, whilst accepting the general principle that certain awards could properly contain an element of exemplary damages, have preferred not to restrict themselves to the categories contained in the analysis of Lord Devlin. A similar approach has been adopted in New Zealand (see Taylor v Beere [1982] NZCA 15; (1982) 1 NZLR 81). The English courts remain unrepentant and Rookes v Barnard received wide support from the House of Lords in Cassel Co Ltd v Broome [197211 All ER 801 (Broome's case).

This conflict between the details of the approach adopted in the various common law jurisdictions to awards of exemplary damages is one which may present a difficulty to this Court in an appropriate case. But, in view of the limitation of section 17 of the Constitution to the award of "compensation", and the terms of the Anguilla Case, in my judgment the award in this case should be limited to an award within the compensatory principle and exclude exemplary damages. However, in the class of case where one is awarding compensation for breach of the Constitution, there is likely to be a large element which cannot be estimated by relation to some material loss. There may be elements such as loss of reputation and injury to feelings. As Lord Hailsham said in Broome's Case at p.824 when dealing with damages in a libel case:

"This is why it is not necessarily fair to compare awards of damages in this field with damages for personal injuries. Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant. The bad conduct of the plaintiff himself may also enter into the matter, where he has provoked the libel, or where perhaps he has libelled the defendant in reply. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being `at large'. In a sense, too, these damages are of their nature punitive or exemplary in the loose sense in which the terms were used before 1964, because they inflict an added burden on the defendant proportionate to his conduct, just as they can be reduced if the defendant has behaved well - as for instance by a handsome apology - or the plaintiff badly, as for instance by provoking the defendant, or defaming him in return. In all such cases it must be appropriate to say with Lord Esher, M.R., in Praed v Graham:

‘. . . in actions of libel ... the jury in assessing damages are entitled to look at the whole conduct of the defendant (I would personally add "and of the plaintiff") from the time the libel was published down to the time they give their verdict. They may consider what his conduct has been before action, after action, and in court during the trial.’"

I adopt these words as also applicable in the class of case which is currently before me. In other words I consider that the compensation assessed should also have regard to any aggravating features in the way the contravention of the Constitutional rights of the applicant took place. I must therefore look at all the circumstances in assessing the compensation which is, in my judgment, "at large".

The other question, is against whom should the compensation be awarded? In the Trinidad Case the majority of the Privy Council restricted the award of compensation to an award against the Government of Trinidad on the basis that the order of imprisonment of the Claimant had been made by a judge and "no change is involved in the rule that a judge cannot be made personally liable for what he has done when acting or purporting to act in a judicial capacity" (at page 912). The Council based itself on the fact that the liability for redress was imposed on the state itself other than created as a vicarious liability for the act of the judge. However this case was decided in relation to a Constitution where there was no provision such as section 17 of our Constitution and the only power vested in the Court was to grant "redress . . . for the enforcement of" fundamental rights.

In this case however this court is empowered by section 18(2) of the Constitution to:

"make such orders, issue such writs and give such directions, including the payment of compensation, as it may consider appropriate for the purpose of enforcing or securing the enforcement of (the protective provision) of this Constitution".

It will be noted that the discretion here granted to make orders of compensation is expressly related to the enforcement of the protective provisions and therefore would seem go beyond the normal common law principles which would, for example, require only one award of damages to be made against joint tortfeasors sued in one action (see Broome's case at p. 816). I consider that my paramount duty is to enforce or secure the enforcement of the protective provisions the Constitution and, hence, if it is necessary to do so in the performance of this duty, I may award compensation separately against persons alleged to have contravened the Constitutional rights of an applicant.

I turn now to assessment of the compensation in this case. The original direction of the Second Respondent dated 24 June 1982 was without the shadow of legality. It consisted of a serious deprivation of Mr. Jamakana's rights. It was in terms that carried the inescapable implication that Mr. Jamakana was suspected of improper dealings with Corporation funds which were serious enough to warrant a restriction upon him. All this was based on a letter which, as far as this court is aware, was not authorized by the Board of the private Corporation, on whose behalf it was said to be written, and which contained vague unsubstantiated allegations which, it now transpires, are vehemently denied.

No effort whatsoever was made to investigate the allegations or refer them to the proper authorities. No attempt was made to put the allegations to Mr. Jamakana. No legal advice was sought. Instead the purported direction of 24th June 1982 was issued.

The Second Respondent gave evidence. He said that he considered that as he was a Minister of Government who represented the people of Solomon Islands he had a duty to protect the interests of the people in the Corporation by stopping Mr. Jamakana leaving the country. The Second Respondent considered that he had sufficient authority as a Minister of Police and Justice to take this course when requested in the terms of the letter to him. I find it disturbing that the Second Respondent should not only hold those views in June 1982 but should appear to continue to hold them at the date of the trial. Ministers, just as with every other public official and servant, have the powers vested in them by the Constitution and the law. They do not have discretionary powers to make such orders as they think fit in the interests of Solomon Islands or a group of Solomon Islanders unless the power is conferred upon them by the Constitution or by a law which conforms to the Constitution. Inevitably powers to restrict people or detain them involve processes and procedures. The thought that a. man can be restricted by ministerial direction is one which should only come to the fore in situations of direst emergency. No one suggests that such a situation existed in this case. I am surprised, as I say, that that thought occurred to the Second Respondent in the circumstances of this case.

It is also surprising that the machinery of Government then proceeded to effect the direction without for one moment considering its legality. The Senior Immigration Officer was apprised of Mr. Jamakana's understandable concern but apparently did nothing. The Second Respondent brushed aside Mr. Jamakana's protest. The direction continued in existence and indeed, in effect, from 24th June 1982 to 11th March 1983; some 8 months.

I also take into account the way in which the direction was implemented that is by a personal visit by the Senior Immigration Officer and by a personal and public prevention of Mr. Jamakana taking his flight in March, 1983.

That such a direction and its implementation would cause distress and humiliation to a citizen of the standing of Mr. Jamakana is obvious. He said it cast personal doubts in his own mind about his standing in the community and would cast inevitable doubts in the minds of those with whom he might seek to be associated in the business sense in the future. I accept these matters.

I also take into account that the only apology offered was in the letter of the 16th March 1983 signed by the: Permanent Secretary which relates to the events of 9th March. Whilst one applauds the initiative of the Secretary in offering that apology it is scarcely an apology which meets the size of the wrong done to Mr. Jamakana. No apology has ever been offered for the original ban.

I must also take into account that Second Respondent remained unrepentant at the trial and, indeed, sought to raise allegations contained in the original letter sent to him.

I consider that the major burden for compensation must lie upon the Government as represented by the First Respondent. The Government implemented the direction, which was entirely without legal justification, and maintained it in existence over eight months. In all the circumstances the proper compensations for the contravention on the part of the Government is $5000.00.

I also consider that the Second Respondent must accept personal liability in this case. He personally initiated the direction in circumstances where the basis for it was non-existent in law and inadequate in fact even had he possessed a legal basis for acting. No attempt was made to apply any standard of fairness to the Applicant by giving him a right of reply or by passing the complaints on to authority less personally involved than the Second Respondent was. Where a person endeavours fairly to apply a law which he believes to be relevant and yet makes a genuine mistake which results in contravention of the rights of another, there must always be a strong case for absolving that individual from personal liability on the basis that it is not appropriate to make a personal order of compensation against him for the purpose of "securing the enforcement of the Constitution" within the terms of section 18(2). What matters is the genuine effort to abide by the Constitution and the law. In this case there is no, indication whatsoever that the Second Respondent made any genuine effort to abide by the Constitution and the Law.

I therefore make an order that he pay $2000.00 compensation personally to the Applicant.

After hearing the parties on costs I order that the Applicant's costs be paid as to two thirds by the First Respondents and as to one third by the Second Respondent.