Malaumou v Attorney-General [1991] SBHC 32; HC-CC 055 of 1991 (29 April 1991)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 55 of 1991

JACK MALAUMOU (alias Jack Moli)

-v-

ATTORNEY GENERAL

High Court of Solomon Islands
(Ward C.J.)

Hearing: 9 April 1991
Judgment: 29 April 1991

J. Muria for the Applicant
P. Afeau for the Respondent

WARD CJ: The applicant seeks a declaration that his rights under sections 5 and 14 of the Constitution have been contravened and an order for compensation under section 17 for that contravention.

The facts reveal a most unfortunate situation and are not in dispute.

On the 5th June 1990 the applicant appeared at Central Magistrates Court and pleaded guilty to a charge of simple larceny. He was ordered to pay a fine of $100 forthwith or serve 3 weeks imprisonment in default. As the applicant was unable to pay the fine, the court office staff prepared a warrant of commitment in default on which the default term of imprisonment was wrongly expressed as being one of 3 months. Later in the day, that warrant was signed by a different magistrate and the applicant was taken to prison.

As I have said this was a most unfortunate mistake. The record was perfectly clear and the mistake by the person who drafted the warrant was inexcusable. It is unfortunate that the pressure of work on magistrates frequently results in magistrates signing the warrants of another because, had the sentencing magistrate himself signed the warrant, he may well have noticed the mistake. The signing magistrate had no reason to suspect an error because the default period of 3 months was within the limits set by section 26 of the Penal Code.

On his arrival at the prison, the applicant pointed out he had been sentenced to 3 weeks and not 3 months but was told the warrant said 3 months and that was the time he would serve. After he had served three weeks, he again sought to have the matter corrected but again the prison officers simply said they would follow the warrant. As a result the applicant served a total of 60 days.

Clearly the prison officers had an apparently valid warrant before them and were right to act on it but it must be said that any prudent and concerned officer, hearing such a complaint, might be expected to take at least some steps to check the record. No person or procedure is perfect and therefore mistakes can and do happen. I have no doubt the prison officers involved were following the terms of the warrant in good faith but it would always be prudent to check such a claim as the consequence of a mistake are so serious.

Those agreed facts appear to suggest a clear breach of the applicant's rights under sections 5 and 14. However, the respondent suggests that the provision of sections 5(1)(b) and 14(3)(g) allow such a course of events.

"5(1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases, that is to say:-

(b) in execution of the sentence or order of a court, whether established for Solomon Islands or some other country, in respect of a criminal offence of which he has been convicted;"

"14(1) No person shall be deprived of his freedom of movement ......

(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -

(g) for the imposition of restrictions, by order of a court, on the movement or residence within Solomon Islands of any person ...... in consequence of his having been found guilty of a criminal offence under the law ....."

Both these sections refer to an order of the Court. Clearly, where such order is made, it overrides the general freedom and rights of that individual but, in this case, the order as recorded in the warrant was incorrect. The order of 3 weeks imprisonment in default was a proper order of the court and therefore a lawful exception to the rights in sections 5 and 14. The order as stated in the warrant was not an order of the court and could not in any way be covered by the exceptions quoted above. It is clear that, in serving the 39 days imprisonment in excess of the order, the applicant's rights were contravened.

The real point at issue however, is whether the applicant has a right to bring these proceedings at all. The respondent's case is that he has not and therefore he can neither have the declarations sought nor compensation for any contravention. The respondent bases his case on section 73 of the Magistrates' Courts Act.

"73 No magistrate, justice of the peace or other person acting judicially, shall be liable to be sued in any civil court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction provided that he, at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of; and no officer of any Court or other person bound to execute the lawful warrants or orders of any such Magistrate, justice of the peace or other person acting judicially, shall be liable to be sued in any civil court for the execution of any warrant or order which he would be bound to execute if within the jurisdiction of the person issuing the same."

That, he says, prevents any action such as this against the magistrate or the prison officers obeying the terms of the warrant. No one has suggested any lack of bona fides. In those circumstances, the government cannot either be vicariously liable.

The applicant seeks to avoid that by the suggestion that the signing of the warrant by the magistrate was not a judicial but an administrative act. I cannot accept the latter suggestion is correct. The signing of the warrant by a magistrate is a necessary part of the judicial act of passing sentence. If a bona fide mistake is made at that stage the magistrate still has the protection of section 73.

However, I need not go further into that because counsel have confused two separate matters. Section 73 provides protection from private suit. Any judicial officer acting in that capacity bona fide is protected from a claim in tort by an aggrieved person. Had this been an action for false imprisonment then section 73 would have been a complete bar but it is not such an action. It is a claim for breach of the protective terms of the Constitution.

The position was well stated by Lord Diplock in Maharaj -v- Attorney General of Trinidad & Tobago (No. 2) (PC) [1978] UKPC 3; (1978) 2 WLR 902 @ 912 dealing with section 6(1) and (2) of the Constitution of Trinidad and Tobago which is largely the same as our section 19(1) and (2). In that case the same question of judicial immunity was argued. Lord Diplock said:-

"........ no change is involved in the rule that a judge cannot be made personally liable for which he has done when acting or purporting to act in a judicial capacity. The claim for redress under section 6(1) for what has been done by a judge is a claim against the State for what has been done in the exercise of the judicial power of the state. This is not vicarious liability; it is a liability of the state itself. It is not a liability in tort at all; it is a liability in the public law of the state, not of the judge himself, which has been newly created by section 6(1) and (2) of the Constitution."

The immunity of a judge from personal liability does not mean that there is no remedy for error of law or fact. Such error may be corrected by appeal to a higher court and the remedy is the correction of the result. Had the magistrate in this case passed a sentence he was not entitled to pass, the applicant could have had it set right on appeal. It is for that reason section 18 includes the proviso -

"that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law."

What makes this case different is that the error in the warrant, not the original order, caused this applicant to be wrongly deprived of his liberty and freedom of movement. Because of the failure of the authorities to check the position the error was not realised until the contravention of the applicant's rights had occurred. It is that deprivation that gives the right to action against the State under section 18 of the Constitution.

The detention of the applicant for the 39 days in excess of the default period ordered by the magistrate was a contravention of his rights and freedom under sections 5 and 14 of the Constitution and he is entitled to the declaration sought.

The applicant therefore seeks compensation under section 17.

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

The topic of compensation in such cases has been considered at length in this Court by Daly CJ in Jamakana v. Attorney General & Anor (1983) SILR 127. Much of the learned judge's researches in that case (pp 132 et seq.) relate to the separate matter of awards of compensation as one of the wide powers given under section 18(2) for the purpose of enforcing or securing the enforcement of the protective provision of the Constitution. His conclusions in relation to exemplary awards in such cases may well be subject to further consideration in a proper case but I do not need to consider them here.

In this case, the contravention has already occurred and the claim under section 17 is for compensation for that contravention. Whilst this resulted from a number of very unfortunate mistakes, there is no suggestion of malice or a deliberate attempt to circumvent the protective provision of the Constitution. Had there been, I feel this Court may well have had to consider awarding compensation that included a punitive or exemplary element but that would be under section 18(2).

In considering section 17, I feel I must assess the compensation only as recompense for the suffering caused by the contravention. This Court has been given no details of loss of pay or employment opportunities. The record of the Magistrates' Court suggests the applicant was a man of 20 years with no previous convictions and earning $150 per month. Any adverse effect of imprisonment on his previous good character and his work arises from the conviction and lawful sentence passed by the court. That has happened anyway. What this Court is looking at is the effect of the added 39 days. Where an innocent man is wrongly imprisoned, the total effect on his work and reputation must be considered. As I have said, that effect of imprisonment on his employment and his reputation was there already. I must try and assess how much worse these matters were made by the additional period. Clearly that will be less than would 39 days wrongful imprisonment be on a man who has committed no crime.

At the same time, reputation depends on the public's view of the seriousness of the offence and the longer the sentence, the more seriously it is likely to be considered. Also one cannot reduce the fact that any wrongful deprivation of liberty is a serious contravention of constitutional rights and the entitlement to such rights applies to all men equally.

Bearing in mind the fact that this was an unlawful extension of a lawful sentence, the fact that it was entirely the fault of the authorities and was not added to in any way by the applicant, that it was a careless mistake and no element of malice was involved, that the total time was 39 days and a potential earning power of the applicant of $150 per month, I feel a reasonable figure of compensation would be one of $2000.

Costs to the applicant.

(F.G.R. Ward)
CHIEF JUSTICE