Whiteside v Akosawa [2018] SBHC 78; HCSI-CC 311 of 2013 (5 March 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Whiteside v Akosawa
Citation:
Date of decision:	5 March 2018
Parties:	John Whiteside v Chris Akosawa, Gordon Darcy Lilo, Attorney General
Date of hearing:	31 October 2018
Court file number(s):	311 of 2013
Jurisdiction:	Civil
Place of delivery:	HCSI-Court Room One (1)
Judge(s):	Faukona; PJ
On appeal from:
Order:	Court grant order declaring the first Defendant. Grant order that the first and third Defendants jointly and severally pay to the Claimant the following damages: (a) General damages to be assessed (b). Aggravated damages to be assessed (C). Exemplary damages to be assessed (3). Cost is awarded against the first and third Defendant payable to the Claimant
Representation:	Mr. G. Suri for the Claimant Mr. S. Banuve for the first and third defendants
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	CC No: 189 of 2013-Whiteside v Attorney General and Others

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION
Civil Case No. 311 of 2013

JOHN WHITESIDE
Claimant

CHRIS AKOSAWA
First Defendant

GORDON DARCY LILO
Second Defendant

ATTORNEY GENERAL
Third Defendants

Date of Hearing; 31 October 2017
Date of Judgment; 5 March 2018

Mr. G. Suri for the Claimant
Mr S. Banuve for the First and Third Defendants

JUDGMENT

FAUKONA J: This cause of action, in terms of facts, is directly linked with Civil Case No. 189/2013 which had been dealt with. To ascribe to the link, the bulk of facts in the above case which commenced with the issues of refusing to grant work permit, and grant of the deportation order, is quite entirely different from the current case.

2. The effect of the administrative orders when enforced, is deem as lawful, however, culminated into certain actions which the Claimant had now claim relief in this particular case.
3. The Counsel for the Claimant’s approach to the core of this cause of action is from two different perspective sources. The Claim is more anchored on the breaches or violation of certain areas of the law of tort, in particular invasion of privacy, unlawful arrest, false imprisonment, trespass to goods, and battery /assault. And of course pivoting on an appropriate remedy in transforming incapacitated torts into calculated damages and restitution.
4. For the first and third Defendants, the Counsel more or less canvassed areas of law than facts, whether the acts complained of are true or not. There is nothing in the submissions touches on the issues argued by the Claimant.

General issues of law:

5. I noted there is no sworn statement of evidence filed by the first and third Defendants to support facts, pleaded in their statement of defence filed on 15th October 2014, in particular paragraphs 5, 8, 10, 11, 13, 14, 15, 16, 17, 19, 20, 21 and 22. Denying facts at pleading without a sworn statement in support is an unmerited case; a cause taken which cannot be considered.
6. With the brief introductory, the position of the parties are clear. Undoubtedly the Counsel representing the first and the third Defendants is interested in contesting legal principles, or law that are applicable to the circumstances of the current case, which in his view should prevail over any claim in tort for breaches.

A reinstatement of case or res-judicata:

7. The facts and evidence in support of the claim, in reality are not in issue at all, but certain areas of law are in contention. One of which is a submission in respect of a dual statement common to both cases, with the same parties, and which had been dealt with in CC No: 189 of 2013, hence res-judicata.
8. If both Defendants could agree that previous finding were made specifically against the Commissioner of Labour and the Minister of Immigration only, and damages were awarded as consequential relief, then it is crystalline clear the parties are not the same. The issue is not the same either. The previous claim was an application for judicial review. The award made was consequentially arising from an invalid deportation. It was not decided on the same act of facts, and did not concern redress against private action done by the first Claimant or other Police Officers concerned, which the Attorney General represent in this court now. Ultimately, the principle of res-judicata cannot function on the basis of those facts and law.
9. Initially the Claimant was considering a consolidation of both cases. It was the same Counsel for the Defendants who objected to any consolidation. He submitted that this case included issues arising out of private action, hence, ought to be heard and determine under private law, and cannot be heard in consolidation where remedy sought was under public law. Now the Counsel seems to contradict his previous wisdom. I think, and which I believe, the Counsel is trying to divert the course he had committed, an attempt to destroy trial which in my view does not assist the court at all.

Cause of action:

10. The first and third Defendants as tortfeasors contended that the discontinuance of claim against the second Defendant, a joint tortfeasor, tantamount to discharge of the claim against them. They alleged on the pleadings, the second Defendant was the driving force behind the commission of the alleged torts. Despite that, no amendment was made to remove the allegation against the second Defendant. On that stance, submissions by the Counsel assured the second Defendant is still a party. As such paragraph A cannot be considered in isolation from paragraph B.
11. I noted the logic in the submissions by the Counsel for the first and third Defendants. The problem he encounters is that neither the first Defendant nor any of the third Defendants filed any sworn statement to the effect, that what they did was authorized by the second Defendant. As it stands, the actions by the current Defendants is viewed as independent actions, which has no basis, or connected to any authority delegated by the second Defendant. Therefore it is proper, in my view, that paragraph A can be considered in isolation without reliance on paragraph B.
12. The law of tort provides liability of tortfeasors depend on the area of their instrument and that is a formidable consideration when the issue of assessment of damages is considered.

Interest reipublicae ut sit finis litium:

12. The first and the third Defendants contend that consequential tort of wrong doings arise from invalid deportation had been addressed by award of damages and indemnity costs in CC 189 of 2013. To seek another award of damages in this case is abuse of process.
13. I have to recapitulate again, that it was agreed by Counsels that this cause of action be heard separately as it concerned a private law claim from CC 189 of 2013.
14. Conceivably, damages that may have accrued from invalid decision to deport, should be damages that may have raised from anxiety, employment, employment benefits, character defamation and status, and general public perception of who the Claimant was.
15. This must be distinguished from damages that arise out of personal and physical act by the first and third Defendants. This is the core issue in this case. Those actions must be perceived as violating individual rights and protection of the Claimant and his property. Those are different sources and value, apart from the administrative decision which eventually found invalid. Damages arise from invalid administrative decision is not the same, and cannot be expected to equate with damages suffered by the Claimant because of physical harm resumed to by the two Defendants. I find it difficult to reconcile with the Defendants’ submission, hence, this cause of action is not an abuse of process.

Discharge of the second Defendant:

17. In rather a detail manner, the Counsel for the first and third Defendants contends that the first Defendant would not have committed any of the alleged torts in paragraph A without the specific instruction or direction of the second Defendant. This is a repetition of paragraph (1) of the Counsels’ submission, which I have considered and express my views in paragraph 10 of this judgment already.
18. However, for fairness purposes, let me reiterate again that by discontinuing of the case against the second Defendant, by way of notice filed on 30th April 2016, does not change the position or weaken the first and third Defendant’s case.
19. The most significant aspect of both Defendants case is that they failed to file any sworn statement in support of the facts pleaded in their defence. The same was committed by the second Defendant. A party cannot rely on pleadings as evidence to support his case. There must be evidence to support the pleadings.
20. Mr Suri therefore, capitalized on this important failure, hence, discontinued the case of the second Defendant as he saw fit, and prosecute the case against the first and third Defendants where he actually had evidence against them; sworn statement by the Claimant filed on 20th August 2013 which attracts no rebuttal.
21. As a result it cannot be accepted, that discontinuance of the claim against a joint tortfeasor renders, or will lead to discharge of the claim against the first and third Defendants (and the Police) for commission of the tort, and the part they allegedly played in the entire episode. They must be responsible for what they had done.

Miscellaneous issues:

22. It is the Claimant’s case that the first Defendant was acting in his both private and official capacity. And so, he is represented by the Attorney General. The Attorney General had never refused to represent the first Defendant in his representative capacity, or even suggest that the first Defendant ought to represent himself. But all alone conceded to represent. In doing so, had accepted liability should the case is in favour of the Claimant.
23. It is not in the interest of the Claimant to involve the second Defendant in this case. I must reiterate that there is strong evidence that the first Defendant was acted wrongfully in a private capacity. He cannot rely on actions he took were dictated by the second Defendant. He filed no evidence to support that pleading. By acting mute against allegation without response or rebuttal is one way of accepting the allegation and liability. In this instance I must find the first and the third Defendants liable on the balance.
24. From submissions both Counsels seem to trod their own paths. Mr Suri is more focussed on the three nature of breaches alleged in the claim. Whilst Mr Banuve perhaps not interested in the merit of the claim, but raise issues that put at stake the position of both Defendant. In the end I find Defendant’s submissions and case do not based on evidence at all, but pointing out areas of law which I find not applicable. Those submissions are, as I find, carry no merit, therefore must fall.
25. However I find the Counsel for the Claimant has set out his case systematically and in an orderly manner. Started by exerting the relevant principles in the law of tort, upon which the cause of action arise. Then submissions on evidence supporting those principles of tort vilated. At last provisions of case law authority supporting the arguments.
26. The Counsel for both Defendants offers no rebuttal at all to the Claimant’s submissions. Their failure provides no basis to argue, even to proceed this far. As I have stated earlier there was no sworn statement filed to support their defence.
27. I must therefore find the Claimant has proved his case on the balance of probability. Therefore I grant the following reliefs in his favour.

Order

(1) Grant order declaring that the first Defendant, with assistance of certain Police Officers, committed wrongful action against the Claimant in terms of malicious invasion on the Claimant’s privacy, unlawful arrest, false imprisonment, trespass to by the first Defendant, viz mobile, mobile credits, Fiji passport and battery or assault. All the incident were occasioned on 9^th June 2013.
(2). Grant order that the first and third Defendants jointly and severally pay to the Claimant the following damages:

• (a) General damages to be assessed
• (b). Aggravated damages to be assessed
• (C). Exemplary damages to be assessed

(3). Cost is awarded against the first and third Defendant payable to the Claimant

The Court

REX FAUKONA
PUISNE JUDGE