Aipia v Attorney General [2021] SBHC 78; HCSI-CC 604 of 2017 (28 June 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Aipia v Attorney General
Citation:
Date of decision:	28 June 2021
Parties:	Dr. Reginal Aipia v Attorney General, James Teri, John Leqata, Samson Maeniuta and Peter Lausu’s, DC Joseph Roscal, DC Reginal Misiosi, DC Peter Aike, DC Edward Vilaka, Supt. Mostyn Manau, SGT. Michael Aluvolomo, Paul Manau, Andrew Siriurao and Nathaniel Kabagita, Lindsay Kelliara, Paul JNR Fanasia, Edward Honiawala, Attorney General
Date of hearing:	15 December 2020
Court file number(s):	604 of 2017
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:
Order:	I give judgment for the Claimant in the amounts claimed. Damages to be assessed if not agreed. Cost against the Defendants on a standard basis.
Representation:	Rano W for the Claimant S Banuve for the Defendant
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Bird v Jones QB[1845] 742, Rooks v Bernard [1964]A.C 1129, James Koimo v The state 1995 [PNGLR] 535,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 604 of 2017

BETWEEN

DR. REGINAL AIPIA
Claimant

AND:

ATTORNEY GENERAL
(Representing the Director of Fisheries)
1^st Defendant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Police)
2^nd Defendant

AND:

ATTORNEY GENERAL
(Representing the DPP)
3^rd Defendant

AND:

JAMES TERI, JOHN LEQATA, SAMSON MAENIUTA AND PETER LAUSU’S
4^th Defendant

AND:

DC JOSEPH ROSCAL, DC REGINAL MISIOSI, DC PETER AIKE, DC EDWARD VILAKA
5^th Defendant

AND:

SUPT. MOSTYN MANAU, SGT. MICHAEL ALUVOLOMO, PAUL MANAU, ANDREW SIRIURAO AND NATHANIEL KABAGITA
6^th Defendant

AND:
LINDSAY KELLIARA, PAUL JNR FANASIA, EDWARD HONIAWALA
7^th Defendant

AND:

ATTORNEY GENERAL
(Representing Solomon Islands government)
8^th Defendant

Date of Hearing: 15 December 2021
Date of Judgment: 28 June 2021

Rano W for the Claimant
Banuve S for the Defendants

JUDGMENT

The Claim

The Claimant filed a category A claim against the Eight Defendants under three torts namely;

1. False imprisonment
2. Unlawful detention of chattel and
3. Malicious prosecution

Seeking the following reliefs;

1. An order that the Claimant has been subjected to wrongful arrest, false imprisonment and malicious prosecution.
2. Damages for economic loss in excess of but say $50,000,000- 00.
3. Damages for wrongful arrest, false imprisonment and malicious prosecution in excess of. But say $3,000,000-00.
4. Aggravated Damages in excess of, but say $2,000,000-00.
5. Exemplary Damages in excess of, but say $1,000,000.00.
6. The Solomon Islands Government be vicariously liable for all defendants.
7. Cost on indemnity basis.

The facts of the incidents resulting in this claim are set out in paragraphs (A) and (B) below

A. The 2013 Criminal Case Agreed Facts

1. On or about 6^th October 2013, the Claimant was taken on board MV Lata from his home island and was kept on board until arrival at Honiara on 10^th October 2013.
2. On 10^th October 2013, the Claimant was taken to Rove Police Headquarters and released later in the afternoon.
3. On 9^th September 2014, the Claimant was kept at Rove from 5:07 pm until 9 am on 10^th September 2014 for questioning.
4. On 10^th September 2014, the Claimant was charged for possession of bech-de-mer for export contrary to Section 13A of Fisheries Act.
5. Between October 2013 and November 2014, the Claimant took all steps necessary for him to export the bech-de-mer. He negotiated with First Defendant and various stakeholders. The Claimant also offered to compound the alleged offences on conditions that he pays a fine at a certain amount and to sell the bech-de-mer. All these were not accepted.
6. The Claimant insisted on a speedy trial but the Prosecution continued to delay the trial on account of unavailability of witnesses. The Claimant further insisted on part hearing and for the Prosecution to call those witnesses available in Honiara. Again the Prosecution objected.
7. On 31^st October 2014, the Magistrate dismissed the charges against the Claimant on grounds of limitation. The Third Defendant appealed to the High Court around December 2014, after was remitted back to the Magistrates Court.
8. On 23^rd April 2015, the Fisheries Act 1998 was repealed by the Fisheries Management Act 2015.
9. On 10^th June 2015, the Fisheries Management Act 2015 came into force.
10. On 1 May 2017, the Claimant was acquitted by Principal Magistrate, Mr Aulanga.
11. When the Claimant was detained in October 2013, a total of 44 bags of bech-de-mers of various high-grade species were taken from him by the Defendants.

B. The 2017 Criminal Case Agreed facts

12. On 12^th September 2017, the Claimant was taken on board MV Lata together with a scientist Dr Erik Harberg.
13. On 13^th September 2017 at arrival, the Claimant and Dr Harberg were kept at Rove Police Headquarters until 12 midnight.
14. At about 12 midnight on 14 September 2017, the Claimant walked away but the police took his personal belongings and refused to hand them over to the Claimant.
15. On 21^st September 2017, the Claimant was arrested and charged for illegal harvesting and farming by the Sixth and Seventh Defendants. The Police Prosecution applied for an order that the Claimant be remanded for 14 days. The Magistrate Court refused the application.
16. On 22^nd September 2017, the Third Defendant took over the prosecution of the Claimant.
17. Throughout his detention up to the time when the application for dismissal was made, the Claimant’s solicitor reminded the Police Prosecution and thereafter the DPP that they have no sufficient evidence to charge the Claimant.
18. On 18^th October 2017, the Claimant and his co-accused applied for the charges to be dismissed on the basis of insufficiency of evidence and in the case of Dr Harberg on grounds under Section 126 of the Criminal Procedure Code.
19. On 14^th November 2017, the Magistrate acquitted the Claimant.

The Issues

The issues for determination are as follows:

1. Whether the criminal prosecution of the Claimant by the Defendants throughout 2013 up to 2017 amounts to malicious prosecution.
2. Whether the arrest and detention of the Claimant:
   • (a) on board Patrol Boat MV Lata on 6^th October 2013;
   • (b) at Rove Police Headquarters on 9^th October 2013;
   • (c) at Rove on 9 September 2014;
   • (d) at Rove on 10^th September 2014;
   • (e) on board Patrol Boat Lata on 12^th September 2017;
   • (f) at Rove on 13^th September 2017;

amount to wrongful arrest and false imprisonment.

3. Whether the Defendants acted in the performance of their duties in good faith.
4. Whether the Defendants are liable for damages.
5. Whether the Eighth Defendant is liable for the actions of its Officers.

The Attorney General had filed a defence on behalf of all the Defendants but no sworn statements in support of the defence were ever filed. The facts and the evidence of the Claimants, therefore, were not contested, the only question is a liability.

Alleged Wrongful Arrest and False Imprisonment, the 2013 incident.

That the Claimant boarded the patrol boat Lata from Luaniua to Honiara is not in dispute. The only question is whether the Claimant was arrested with or without a warrant of arrest when he was taken to Honiara on patrol boat Lata. There is no evidence the officers have reasonable suspicion that the Claimant had committed an offence or going to commit an offence when he was taken on board, the police patrol boat Lata. There is no evidence that the Police had a warrant of arrest to arrest the Claimant.

The Claimant, in his sworn statement, filed on 23^rd June 2020 and tendered as evidence in chief deposed that he was told to board Patrol Boat Lata from his home island on 6^th October 2013. The Claimant deposed that he was never arrested or informed that he was under arrest nor the reason for his arrest.

The evidence shows that the Claimant was concern about the beche-de-mer and wants to ensure the bech-de-mer do not get spoiled and lose their value. The Police also loaded more than 1500 kg of processed bech-de-mer belonging to the Claimant on the Patrol Boat Lata. The bech-de-mer were worth millions of dollars. In fact, they were sold to a Chinese buyer for $15,000,000-00 afterwards

In considering the police actions, I am satisfied the Claimant did not voluntary decided to board the Police Patrol Boat Lata to Honiara on 6^th October 2013 but was compelled by the circumstances created by the police officers taking his bech-de-mers and loading them on the Patrol Boat Lata. He was compelled but he was not lawfully arrested.

In Bird v Jones QB[1845] 742, Patterson J said, “I have no doubt that, in general, if one man compels another to stay in any given place against his will, he imprisons the other just as much as if he locked him up in a room.”

In the present case, since he was not lawfully arrested, he was falsely imprisoned for 4 days on the Patrol Boat Lata from 6^th to 9^th September and on 10^th September 2013 at Rove Police Headquarters. In fact, the Claimant was only formally arrested and charged in October 2014. On the materials before the court I find that the Claimant was never lawfully arrested and therefore his detention on the Patrol Boat Lata and at Rove Police Headquarters at the following dates and times;

(a) onboard Patrol Boat MV Lata on 6^th - 9^th October 2013;
(b) at Rove Police Headquarters on 10^th October 2013;
(c) at Rove on 9^th September 2014;
(d) at Rove on 10^th September 2014;
were unlawful and that he was falsely imprisonment on those dates and times aforementioned.

Unlawful Detention of chattel.

In view of his unlawful arrest and unlawful detention, I also find that any properties taken by the police including the 44 bags of bech-de-mer taken from him were also unlawfully taken and unlawfully detained as there is no evidence or suspicion based on reasonable grounds that the bech-de-mer taken by the Police and Fisheries officers were harvested during the close season. The criminal prosecution against the Claimant was decided in his favour and was acquitted in the Magistrate Court but the Police and the Fisheries officers did not return the bech-de-mer 1,526.28 kilos taken from the Claimant. This is unlawful detention of chattel. I find the Defendants liable for unlawful detention of chattel.

The 2017 Arrest and false Imprisonment

The facts of relating to the 2017 arrest are set out in paragraph B 12 - 20 above. The facts are not disputed and I do need to repeat them. The Claimant, in a sworn statement, filed on 23^rd May 2017 also deposed that on 12^th September 2017 he was again detained without arrest by the Sixth and Seventh Defendants. His detention was on boat patrol boat Auki together with an American scientist, Dr Erick Harberg and also at Rove on 13^th September 2017. These facts were not disputed. I am satisfied the Claimant was never arrested because the evidence was that he only arrested on 13^th September 2017 by Detective Constable Siriurao on the directions of Mr Nathaniel Kabagita and Mr Honiwala.

Malicious Prosecution.

I will consider the claim for malicious prosecution in respect to the two prosecutions together.

The tort of malicious prosecution occurs where a person maliciously and without reasonable and probable cause initiates judicial proceeding against another person which terminates in favour of that other person and which result in damages to his reputation, person or property.

The Defendants are public officers and police officers. They are mostly if not all are part of a team which were involved in taking the Claimant from his home in Ontong Java in 2013 and 2017 and were also involved in his detention and investigation carried out against the Claimant on two occasions, one in 2013 and the other in 2017. The agreed facts relating to the 2013 prosecution are set out in paragraphs A sub-paragraphs 1-11 and 2017 in paragraph B sub-paragraphs 12 - 20 of the agreed facts. The issues that need to be determined are as per the agreed issues set out in paragraphs 1-5. I had considered the materials before the court and although there was a delay in police charging the Claimant, I found no evidence to support the claim of malicious prosecution in regard to the 2013 incident.

In order to succeed in a claim for Malicious prosecution the Claimant must prove each aspect of the tort, namely;

1. That the Defendant was actively instrumental in instituting criminal proceeding against the plaintiff;
2. That the prosecution must have terminated in favour of the plaintiff;
3. That Defendant acted without reasonable and probable cause;
4. That the Defendant was actuated by malice; and
5. The plaintiff suffered damage to his reputation, person or property.

On 1^st May 2017, the Magistrate Court acquitted the Claimant of charges laid against him following the Fisheries and Police operation which they took him from his home in Ontong Java in 2013.

Three months after this on 9^th September 2017, the Director of Fisheries, the First Defendant, again mounted another operation with the aim to arrest the Claimant and confiscating the bech-de-mers he was reported to have illegally harvested and farmed on Ontong Java. An operation was mounted by the Fisheries Department and Police Officers using the Police Patrol Boat Auki to travel to Ontong Java to arrest the Claimant and confiscated bech-de-mers from him.

In this instance, the Director of Fisheries knew or ought to have known that the Claimant was authorised to do a pilot project of bech-der-mer farming. The authorisation was given by the Acting Minister for Fisheries Hon. Glay Forau. The Claimant’s project was also supported by the Director himself as per his letter to the Claimant’s company dated 1^st June 2017. The Director is capable of distinguishing between commercial farming and pilot project or trial project. He fails to consider this or rather turn a blind eye to this and plan the operation to arrest the Claimant and confiscate his bech-de-mer. It is clear in the operation orders that was the aim of the trip was to arrest all persons engaged in the illegal harvest of bech-de mer but only the Claimant was arrested while others were ignored. The only reasonable inference one can draw from his action is, it shows an act of a person actuated by malice and was not based on any probable or reasonable cause of action. Why, presumably because he fails to convict the Claimant in his first attempt just 3 months earlier so he was determined to have another punch at the Claimant and may have been obsessed with malice that he fails to reasonably consider his action.

With regard to malicious prosecution, the court has to be satisfied that the Claimant has proved the elements outlined above. With regard to element 1 and 2, these are not disputed. With regard to element 3, the Defendants were acting upon a report that the Claimant was involved in the illegal harvest of bech-de-mer and illegal farming of bech-de-mer. The material shows that reports were made by the person who has an interest in harvesting and buying bech-de-mer in the Lord Howe Atolls. In this respect, the Director of Fisheries should carefully assess the reports before carrying out the operation. I believe the First Defendant, the Director of Fisheries by nature of his job, was aware that those who made the reports against the Claimant have a business interest in bech-de- mer trade just like the Claimant. It is public knowledge that he is responsible for issuing licences to these people and has records of the people who are involved in the bech-de-mer trade especially exporters of the product. However, without careful consideration, he mounted the operation to go and arrest the Claimant. There is no evidence that he has reasonably believed the reports were true or that he has reasonable suspicion that the Claimant has committed or is committing an offence.

On arrival at Ontong Java, the Fisheries Officers and Police Officers did carry out a search and found bech-de-mer in possession of the Claimant and some other people. They did not arrest the other people or determine that the bech-de-mer found were harvested illegally. Taking to account the actions of the First Defendant in instituting prosecution against the Claimant in the circumstances, I am satisfied amounts to malicious prosecution, the prosecution resulted in the Claimant suffering damages to his reputation and loss revenue and property.

Findings.

1. Wrongful arrest proved against the First, Second, Fourth, Fifth, sixth, Seventh and Eighth Defendants.
2. False imprisonment proved against the First, Second, Fourth, Fifth, Sixth, Seventh and Eighth Defendants.
3. Unlawful detention chattel proved against First, Second, Fourth, Fifth, Sixth, Seventh and Eighth Defendants.
4. Malicious prosecution proved in relation to 2017 criminal case only against the First, Second, Third, Sixth, 3^rd named Seventh Defendant and Eighth Defendants.
5. Claim for malicious prosecution to the 2013 case not proven and dismissed.

Were the Defendants Acting in good faith?

In considering the question of whether the Police and Fisheries Officers were acting in good faith it is necessary to consider a number of factors including whether the Defendants carefully assess the reports received about the Claimant and consider if the reports were made in good faith. There is also a need to consider the facts associate with the harvesting of bech-de-mer in Ontong Java atolls. There is evidence, harvest and bech-der-mer trade is one of the means of survival in the atolls so there is high competition between the people harvesting as well as buyers. People dive bech-de-mer to sell or exchange for food and other necessities for their daily survival. It comes with excitement and fierce competition and also involves politics and backstabbing.

The Attorney General filed a defence on behalf of the Defendants but filed no sworn statements in support of the defence. The Attorney General, however, submits that the Defendants are not liable to the Claimant. He submits that the Defendants are public officers and were enforcing their statutory duties and as such cannot be held liable as claimed.

While the police officer and fisheries officers were protected from liability under the Police Act and The Fisheries Act. I do not think this is absolute, there are exceptions based on whether the officers were acting in good faith. In that respect, despite the learned Solicitor’s Generals submission, I think there are qualifications and the Defendants must show they were acting in good faith. No evidence was adduced by the Defendants to prove that they were acting in good faith.

After considering these facts, I am satisfied the police and fisheries officers were not acting in good faith. I find the Defendants liable to the Claimant. I grant the relief sought.

Whether the Eighth Defendant is liable for the actions of its officers?

Generally, the State is subject to all liabilities in tort to which, if it were a privats person full of age and capacity, it would be subjected in respect of torts committed by its servants and agents.

Where functions are conferred or impos an officer or the State as such either by statute, and thed the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.

Exemplary damages

Exemplary damages carry a punitive element aimed at both retribution and deterrence for the wrongdoer and those who may be considering the same conduct. In Rooks v Bernard [1964]A.C 1129, Lord Delvin identified three categories where exemplary damages might be awarded, namely; (a) oppressive,(b) arbitrary or (c) unconstitutional actions by servants of the government,

In James Koimo v The state 1995 [PNGLR] 535 Injia J as he then was, held, “In situations involving the acts of servants of the State, exemplary damages are awarded at common law where the action is oppressive, arbitrary or unconstitutional. An award of exemplary damages serves to show the disappointment of the court and the indignation of the public at the oppressive action of the servant of the state, require the state to take appropriate remedial action, and adversely affects the reputation of the state.”

In the present case, all Defendants are public officers as such the State is vicariously liable for their actions relating to the wrongful arrest and other torts committed on the Claimant. I give judgment for the Claimant in the amounts claimed. Damages to be assessed if not agreed. Cost against the Defendants on a standard basis.

The Court
Justice Emmanuel Kouhota
Puisne Judge