Edwards v Pohiva (Cross Appeal) [2003] TOCA 8; CA 01 & 10 2003 (25 July 2003)

IN THE COURT OF APPEAL OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

Appeal No. 01/2003
Case No. C 559/1998

BETWEEN:

HON. CLIVE EDWARDS
Appellant

AND:

SAMUELA 'AKILISI POHIVA
'EAKALAFI MOALA
FILOKALAFI 'AKAU'OLA
Respondents

BETWEEN:

SAMUELA 'AKILISI POHIVA
'EAKALAFI MOALA
FILOKALAFI 'AKAU'OLA
Appellants

AND:

THE KINGDOM OF TONGA
Respondent

Coram: Ward CJ
Burchett J
Tompkins J

Counsel: Stephen Stanton and William Edwards for the appellant
Rodney Harrison QC for the respondents
Linda Simiki for Kingdom of Tonga

Dates of Hearing: 17, 18 July 2003
Date of Judgment: 25 July 2003

JUDGMENT OF THE COURT

Introduction

[1] The appellant in the first appeal, the second defendant in the Supreme Court, has appealed and the respondents in the first appeal, the plaintiffs in the Supreme Court, have cross-appealed against the judgment of Ford J delivered on 3 December 2002 following a hearing over 9 days in May, July and August 2002. The judge observed that the delivery of the judgment was delayed pursuant to clause 73 of the Constitution which frees members of the Legislative Assembly from judgment while the House is sitting. On this observation, see paragraph [71] below. The appellant and the second respondent are both members of the House. The 2002 session of the Legislative Assembly closed on 28 November 2002. Throughout this judgment we refer to the parties by their titles in the first appeal.

[2] The judge held that the respondents had established their claim for damages for wrongful imprisonment against the Kingdom of Tonga, the first defendant in the Supreme Court, and against the appellant. He dismissed the respondents' claim for exemplary damages. He made the following awards for general and aggravated damages against the appellant and the Kingdom of Tonga jointly and severally:

• [a] First respondent: $20,000
• [b] Second respondent: $17,000
• [c] Third respondent: $20,000
  

He awarded the respondents costs against the appellant and the Kingdom.

[3] The appellant has appealed against liability, contending that judgment should be entered for the appellant. He does not appeal against the quantum of the award. The respondents have given notice of intention to submit that the judgment should be affirmed on the alternative ground of breach of their constitutional rights, and have cross-appealed on the ground that the damages awarded were too low. The Kingdom of Tonga has not appealed against the finding on liability or damages.

[4] In the course of the hearing, it became apparent that the respondents in their cross-appeal were contending that the damages awarded to the respondent against the appellant and the Kingdom of Tonga were inadequate. The Kingdom of Tonga was not expressly a party to the appeal. Dr Harrison submitted that the notice of cross-appeal had the effect of making the Kingdom of Tonga a party in accordance with O 3 r 2, but in case that was not so, he made an oral application for leave to appeal against the Kingdom of Tonga on the grounds set out in the notice of cross-appeal. Ms Simiki for the Kingdom of Tonga opposed the application. After hearing counsel, the court granted the application. Ms Simiki applied for an adjournment. That application was declined, as the court considered that the Kingdom of Tonga had had notice of the grounds of appeal, and should be in a position to proceed. Ms Simiki had filed written submissions in opposition to the matters raised against the Kingdom in the cross- appeal. She had been present during the whole of the hearing.

Background

[5] The judgment in the High Court described the events that occurred:

Towards the end of August 1996, the peoples' representatives in the Legislative Assembly determined to attempt to have Parliament impeach the then Minister of Justice and Attorney-General for attending the Olympic Games in Atlanta, Georgia, in the United States after the Chairman of the House had allegedly declined his application for leave. It was also alleged that he had committed theft in drawing and using the amount of $2615, which he had not been entitled to receive once his leave application had been declined.

At noon on 4 September 1996 the motion for impeachment of the Minister was submitted to the office of Parliament by one of the peoples' representatives. A special procedure is prescribed in the Standing Orders of the Legislative Assembly for dealing with impeachment matters. Before any of the formal processing steps could be taken, however, an article appeared in the Taimi 'O Tonga newspaper dated 4 September 1996 under the heading "Impeachment". The article said that: "An impeachment of the Minister of Justice has been submitted by the peoples' representatives" and it then went on to set out the full text of the impeachment notice including full particulars of the allegations of misconduct made against the Minister.

The first plaintiff, Mr Pohiva, who was the number one peoples' representative in the Legislative Assembly subsequently admitted to the House that it was he who had passed the impeachment notice of motion on to the newspaper for publication. He told the court that he had taken similar action on previous occasions without any adverse consequences.

On 11 September 1996 the Chairman of the Legislative Assembly issued a summons to the three plaintiffs to attend before the House on Thursday 19 September 1996. The second plaintiff, Mr Moala, who is based in Auckland, is the editor and publisher of the "Taimi 'O Tonga" newspaper. The third plaintiff, Mr 'Akau'ola, is the assistant editor and advertising manager of the Taimi 'O Tonga; he resides in Tongatapu. The summons charged the plaintiffs with publishing an article on impeachment which was "not correct and it is disrespectful to the Legislative Assembly".

[6] There followed what was described as "Parliament's contempt hearing" on Thursday 19 September. The respondents were present, the second and third respondents represented by counsel, the first respondent representing himself. They were given the opportunity to answer the allegations against them. The hearing was in public. The appellant was amongst those who voted for the respondents to be found guilty. He abstained from voting on the penalty to be imposed.

[7] At the conclusion of the hearing, Parliament determined that the respondents were guilty and should be imprisoned for 30 days. The Speaker of the Legislative Assembly issued a warrant in these terms:

"20 September 1996

To the Minister of Police

Nuku'alofa

The Legislative Assembly ordered to prison:

1 'Eakalafi Moala

2 Filokalafi 'Akau'ola

3 'Akilisi Pohiva

for 30 days commencing 5 o'clock on the afternoon of 19 September 1996 by virtue of the power vested in the Legislative Assembly by clause 70 of the Constitution and the judgment of the House on this day regarding their imprisonment.

They are not to be released until after the expiration of 30 days or otherwise ordered by Parliament for a shorter time. I ask that immediate effect be given to this order.

Fusitu'a
Chairman of the Legislative Assembly."

[8] The appellant was handed the warrant shortly after the House had risen for the day. He passed it on to Police Inspector Tu'ihalamaka who executed it on 20^th September, 1996, the day it was issued. The respondents were arrested.

[9] The second and third respondents applied to the High Court for the issue of writs of habeas corpus. The application was heard by Lewis J on 24th September, 1996 and refused, the judge holding that Parliament was entitled to determine whether the respondents' conduct amounted to contempt in terms of clause 70 of the Constitution: Moala & anor v Minister of Police (No1) [1996] Tonga LR 202.

[10] A further application for habeas corpus was then made by all three respondents upon the new ground that Parliament did not have power to detain offenders in prison beyond the period of the parliamentary session. The 1996 session of the Legislative Assembly had closed on 3rd October, 1996. The application was heard by Lewis J on 4 October and again it was refused. Moala & ors v Minister of Police (No 2) [1996] Tonga LR 207.

[11] The respondents then made a third application for habeas corpus based on certain provisions in the Constitution. That application came before Hampton C J on 14^th October, 1996. The Chief Justice upheld the application and ordered the immediate release of the respondents, holding that the allegations contained in the form of summons fell outside the terms of clause 70, and that the minimum requirements of a fair trial were not met: Moala & ors v Minister of Police (No 3) [1996] Tonga LR 211.

[12] The appellant appealed the decision of Hampton C J. This court dismissed the appeal. It held that the charge was defective in that it did not comply with either the first or the second part of clause 70 of the Constitution. The court also noted that the Chief Justice had been correct in holding that clause 70 entitled the respondents to natural justice: Moala and ors v Minister of Police [1997] Tonga LR 210.

The issues on the appeal.

[13] We agree with, and the appellant did not challenge, the judge's description of the law of false imprisonment at page 7 of the judgment:

"The law relating to the tort of false imprisonment is well-established. It is a form of trespass to the person. As stated by Lord Bridge in Hague v Deputy Governor of Parkhurst Prison [1990] UKHL 8; [1991] 3 All ER 733 at 743:

"The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it."

It is a tort of strict liability. There is no onus on a plaintiff to prove that the imprisonment was unlawful or malicious. Once the plaintiff establishes the fact of imprisonment, that is sufficient to make out a prima facie case and the onus then falls on the defendant to prove that the detention was lawful. It may be so, for example, if it is pursuant to an order of the court or the exercise of statutory powers. An action for false imprisonment will succeed or fail depending on whether the defendant can, as a matter of law, justify the detention or imprisonment."

[14] The appellant accepts that the two ingredients of the tort have been made out. The fact of imprisonment was proved and is not now challenged. The absence of lawful authority was clearly established in the decision of this court. The judge's finding, based on s 99 of the Evidence Act (Cap 15), that the Kingdom of Tonga, although not a party to the habeas corpus proceedings, is bound by this court's judgment that clause 70 of the Constitution did not authorize the bringing of the charge set out in the summons, is not challenged by the appellant.

[15] The issues on this appeal are:

• [a] Whether the acts of the appellant were protected by the immunity in s 4 (2) of the Crown Proceedings Act (Cap 13).
• [b] Whether the acts of the appellant were protected by the immunity in s 32 (1) of the Police Act.
• [c] Whether the respondents were entitled to succeed on their alternative cause of action for breach of their constitutional rights.
• [d] The appellant's challenge to the award of damages to the second respondent.
• [e] The respondents' challenge to the assessment of damages.
  

Crown Proceedings Act, s 4(2)

[16] The appellant claimed by way of defence in the Supreme Court that he was entitled to immunity under the provisions of the subsection. It provides:

• (2) No proceedings shall lie against the Kingdom by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him or any responsibilities which he has in connection with the execution of judicial process.
  

[17] The first issue is whether the subsection provides an immunity to the appellant sued personally and in his capacity as Minister of Police. The judge found that the appellant could not rely by way of defence on the immunity afforded the Crown under the subsection. He accepted the submission on behalf of the respondents that the subsection is about the vicarious liability of the Crown in respect of torts and does not afford the appellant a defence.

[18] The appellant submits that the judge erred in reaching this conclusion. It was submitted on his behalf that the appellant, when participating in the vote in the Legislative Assembly and when acting subsequently in his capacity as Minister of Police involved in the execution of the warrant, was acting on behalf of and as the representative of the Kingdom and was therefore entitled to the immunity given to the Kingdom.

[19] We are satisfied that the judge was correct. The subsection gives immunity to the Kingdom. It does not give immunity to the servants or agents of the Kingdom. We reach these conclusions for these reasons.

[20] The Act is, as its long title says, "An Act to Make Provision for Suits By and Against the Kingdom of Tonga". Section 4 is concerned with the liability of the Kingdom in tort:

"4. Subject to the provisions of this Act, the Kingdom of Tonga shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject –

(a) in respect of torts committed by its servants or agents;

(b) ..."

Elsewhere the Act refers expressly to the rights and liabilities of the Kingdom of Tonga, such as s 5 relating to suits against the Kingdom, and s 7 concerning the rights of parties in suits in which the Kingdom is a party. What is significant is that these and other provisions clearly relate to the Kingdom itself, not to its servants or agents, except where it is clearly stated in s 4 (a).

[21] It is a primary canon of statutory construction that, unless there is a patent ambiguity or the context otherwise requires, the words used are to be given their plain ordinary meaning. In the context of the Act, the words "the Kingdom of Tonga" in their ordinary meaning, mean the Kingdom. There are no grounds for reading the words as meaning "the Kingdom of Tonga, its servants or agents". Had that been the intention, the necessary phrase would have been used, as it was in s 4 (a).

[22] Nor do we find any reason for identifying the appellant with the Kingdom. He may have been acting on behalf of the Kingdom as a member of the Legislative Assembly and as the Minister of Police, but that does mean that he is to be regarded as the Kingdom.

[23] Support for this approach is to be found in the judgment of McGechan J in Fyfe v Attorney General [2001] NZAR 498, 508. Section 6 (5) of the New Zealand Act is the same as s 4 (2) of the Tongan Act. McGechan J said:

Section 6 (5) is intended to apply to vicarious liability: the liability of the Crown in respect of acts by another person. . . I do not see s 6 (5) as intended to extend to protect an individual - here Inspector O'Fee - against his own acts."

[24] McGechan J went on to refer to an earlier decision of his, Crispin v The Registrar of the District Court at Napier [1986] NZHC 836; [1986] 2 NZLR 246, in which he had assumed that the Deputy Registrar was entitled to the protection of s 6 (5). That assumption was not correct. He said, "I now consider s 6 (5) does not apply to protect a delinquent Crown servant himself or herself."

[25] The judge found, citing the judgment of Clarke J in Cowell v Corrective Services Commission [1988] 13 NSWLR 714, that at all material times the appellant can properly be regarded as being responsible for the detention of the respondents during the term of their sentence. That finding was not challenged by the appellant. We agree with it. The result is that the appellant was, to use McGechan J's phrase, "a delinquent Crown servant himself", and as such, s 4 (2) does not protect him.

[26] Further support for this approach is in the judgment of the House of Lords in M v The Home Office [1993] UKHL 5; [1994] 1 AC 377, 408, where Lord Woolf, referring to the history of proceedings against the Crown prior to the passing of the UK version of the Act, cited the judgment of Cockburn CJ in Feather v the Queen [1865] EngR 205; (1865) 6 B & S, 257, 296:

"As the Sovereign can authorise no wrong to be done, the authority of the Crown would afford no defence to an action brought for an illegal act committed by an officer of the Crown."

[27] Likewise, in terms of the present circumstances, the immunity of the Kingdom affords no defence to an action brought against the appellant as an officer of the Kingdom.

Conclusion on s 4(2)

[28] For the reasons we have expressed, the defence and ground of appeal based on s 4 (2) cannot succeed. Having reached this conclusion, it is unnecessary for us to consider whether the Legislative Assembly, when considering the charge against the respondents and issuing the warrant for their arrest, was discharging or purporting to discharge any responsibilities of a judicial nature within s 4(2), or whether the appellant as the person responsible for the arrest of the respondents, was exercising a responsibility he had in connection with the execution of judicial process within the same provision. These are complex and difficult legal issues. It is not satisfactory for us to comment on them in an obiter way. Rather they should be decided in proceedings where they will be determinative.

Police Act s 32(1)

[29] The appellant submits that he is entitled as a defence to rely on s 32(1) of the Police Act (Cap. 35 ). That subsection provides:

(1) Where the defence to any suit instituted against a police officer is that the act complained of was done in obedience to a warrant purporting to be issued by a magistrate, the court shall, upon production of the warrant containing the signature of the Magistrate and upon proof that the act complained of was done in obedience to such warrant, enter judgment in favour of such police officer.

[30] It was submitted on behalf of the appellant that, when executing the warrant, he was acting as a police officer, and that the warrant was issued by a body equivalent to a magistrate. We do not accept either of those submissions. We can state our reasons quite shortly.

[31] A police officer is a person who becomes such by the Police Act (Cap. 35). Sections 11, 12 and 13, relating to enlistment, duration of service and declaration on enrolment cannot apply to the appellant as Minister. Put simply, he is not a police officer. His role and his powers are set out in s 8, and are completely different from those of a police officer. This point is so obvious, it does not call for further elaboration.

[32] It is equally obvious that the Legislative Assembly is not a magistrate. A magistrate is a person appointed as such pursuant to s 3 of the Magistrates' Courts Act (Cap. 11). The appellant in his statement of defence pleaded that he was entitled to immunity under the subsection because he was executing a lawful warrant issued by the Speaker of the Legislative Assembly. That is clearly wrong. The subsection has nothing to do with such a warrant. Neither the appellant's submissions in this court nor in the Supreme Court advanced any grounds in support of the contention that the warrant in this case was a warrant issued by a magistrate.

[33] This defence and ground of appeal cannot succeed.

Breach of constitutional rights

[34] The respondents claimed, as an alternative cause of action, that the imprisonment and detention constituted an actionable breach of the Constitution and of their rights thereunder. The judge did not refer to this cause of action in the judgment. The respondents submitted that they were entitled to succeed on this alternative cause of action which, they submitted, is not subject to, or prevails over, any immunity in s 4 (2) of the Crown Proceedings Act or in s 32 (1) of the Police Act.

[35] Dr Harrison submits that this court has not previously considered the question whether the Constitution of Tonga gives rise to a separate cause of action for damages or compensation for a proved breach of a constitutional provision. However, he also accepts that, if the court rejects the appeal on other grounds, it will not be necessary to decide whether there is a separate right of action for breach of the Constitution.

[36] That is now the position. The appeal having otherwise failed, we do not propose to deal with this submission in what would necessarily be an obiter finding. It is preferable that this issue be determined in a case where the decision will be determinative.

The award to the second respondent

[37] The second respondent did not appear in person nor did he give evidence at the hearing. The judge took this into account when fixing the general and aggravated damages, observing that whereas the other two respondents gave evidence of the personal effect of their imprisonment such as humiliation and injury to feelings, the second respondent did not. It was for that reason that he awarded the second respondent an amount less than that awarded to the other two respondents.

[38] The appellant initially submitted that for these reasons, the award of damages to the second respondent could not stand. In the course of the oral submissions, counsel abandoned that submission, but submitted that this was a factor to be taken into account in assessing damages. When it was pointed out that the appellant had not appealed against the assessment of damages, Mr Stanton accepted that the appellant could not challenge the assessment. This ground of appeal was abandoned.

The respondents' cross appeal on damages

[39] The respondents submit that the judge erred in

• [a] failing to make an award for exemplary damages,
• [b] failing to consider aggravated damages separately from general damages,
• [c] assessing the general and aggravated damages at inadequate amounts.
  

The approach in the Supreme Court

[40] The Judge commenced his judgment on damages by considering the claim for exemplary damages. He dealt at some length with the evidence of the Superintendent of Prisons, who held the position at the relevant time but not at the time of trial. The result of his examination of that evidence was his conclusion that he had reservations about a good deal of the evidence and he would not be prepared to rely upon it to substantiate a claim for exemplary damages against the Minister. Similarly none of the other evidence sought to be relied on in support of the exemplary damages claim was, in his view, sufficient.

[41] He concluded that he could find no evidence of any "high-handed or outrageous" conduct on the part of the appellant warranting an award of exemplary damages. He did not consider whether there were grounds for an award of exemplary damages against the Kingdom.

[42] He then turned to the assessment of general and aggravated damages, commencing with the following statement of basic principles, with which we are in agreement.

"Turning to the claim for general and aggravated damages, the relevant principles seem now to be well established. They were rather comprehensively analysed in two recent cases. First, by the English Court of Appeal in Thompson v Commissioner of Police of the Metropolis [1997] EWCA Civ 3083; [1998] QB 498, and more recently, by both the Court of Appeal, (Lord Woolf MR) and the House of Lords in the Brockhill Prison case [R v Governor of Brockhill Prison ex parte Evans (No 2) [2000] UKHL 48; [2001] 2 AC 19]. The House of Lords upheld the approach outlined by Lord Woolf, which Lord Hope (at 40) described as a guideline "in an area where guidance was almost entirely lacking."

Lord Woolf (at 116) had noted:

". . .there can be two elements to an award of damages for false imprisonment; the first is compensation for loss of liberty and the second being the damage to reputation, humiliation, shock, injury to feelings and so on which can result from loss of liberty."

In the Thomson case, Lord Woolf expressed the view that in calculating the proper compensation for loss of liberty the analogy with personal injury cases was closer than cases of defamation and the compensation was for "something which is akin to pain and suffering". In relation to aggravated damages his Lordship noted that a penal element can properly be involved, however, as he put it, "aggravated damages . . . are primarily to be awarded to compensate the plaintiff for injury to his proper pride and dignity and the consequences of being humiliated."

[43] After commenting that the approach in England needs to be regarded with some caution because of the different situation pertaining in the Kingdom, he goes on to set out his conclusions on the impact that the imprisonment had on the respondents:

"I have no doubt that the experience endured by the plaintiffs in the present case was traumatic in every sense of the word. They were professional people carrying on their respective occupations and public duties then suddenly literally overnight, for no lawful reason, they were earmarked as common criminals and incarcerated in the maximum security wing at Hu'atolitoli Prison. I listened carefully as the plaintiffs' evidence unfolded and Messrs Pohiva and 'Akau'ola recounted and relived again the events of 19 September 1996 and the aftermath. Even though almost 6 years had passed since those events took place and the witnesses were able to speak about their ordeal with some detachment, that did not detract in any way from the deep sense of injustice which was still apparent in their demeanour as they slowly and deliberately described their horrendous experience.

I will not recount all the evidence. I do not consider that the plaintiffs overstated their case. They were subjected to a grave injustice. In addition to their confinement with sparse resources and no comforts whatsoever, special restrictions were placed on other aspects of their detention. With some very minor exceptions, they were denied access, for example, to writing materials and visitors. For these reasons, I am satisfied that a proper basis has been established for a penal element in the award of aggravated damages."

[44] We note that despite rejecting the claim for exemplary damages, he did consider that a penal element could be included in the claim for general damages, which accords with the approach of Lord Woolf to which he had earlier referred.

[45] After considering evidence relating to earnings in Tonga which he considered gave a reasonably accurate barometer of the value of money in the Kingdom, taking into account the absence of, and therefore the lack of any evidence from, the second respondent and the medical condition of Mr Pohiva, to which we later refer, he made the assessment of general and aggravated damages by global figures in the amounts we have set out above.

The form of the award of general and aggravated damages

[46] It was submitted on behalf of the respondents that the judge erred in not articulating how and why he reached the awards on account of general and aggravated damages. No reasons, it was submitted, were given to identify what part (if any) aggravation of damages played in the fixing of the amounts awarded. Dr Harrison submitted that this approach constituted misdirection and an error of law.

[47] We do not accept this submission. It is correct that in Thompson v Commissioner of Police [1997] EWCA Civ 3083; [1998] QB 498, Lord Woolf delivering the judgment of the Court of Appeal said that compensatory damages for wrongful imprisonment are of two types, first, ordinary damages which he suggests should be described as basic, and secondly, aggravated damages that can only be awarded where there are aggravating features about the defendant's conduct which justifies the award of aggravated damages. However later in his judgment at page 516 he said, in the context of a jury trial, that if the jury considered the case is one for the award of damages other than basic damages then they should usually make a separate award for each category. He went on to observe that this is contrary to the present practice but in his view will result in greater transparency as to the make-up of the award.

[48] The more orthodox approach is in the judgment of the High Court of Australia in Gamser v the Nominal Defendant (1976) 136 C.L.R. 145, 155. Aickin J said:

"[The judge] did not indicate that he had arrived at that figure by a process of attributing particular sums to individual ingredients and in this respect he followed the indication which this court had given in Arthur Robinson (Grafton) Pty. Ltd. v Carter [1968] HCA 9; (1968) 122 C.L.R. 649 that it is preferable not to attempt to assess a figure under each possible individual heading and then to add up the total . . . There can certainly be no error in refraining from attributing separate amounts to various headings or topics regarded as matters to be adverted to in assessing general damages."

[49] While the judge could, if he chose, have made a separate award under each head, it is certainly not an error of law to make a single global award. His judgment identified, in general terms, the factors he took into account. He said it included a penal element. He was not required to do more. This ground for challenging the award does not succeed.

The amount of the awards of general and aggravated damages

[50] A classic statement of the grounds upon which a Court of Appeal will interfere in the assessment of damages by a judge is in the judgment of Greer LJ in Flint v Lovell [1935] 1 KB 354 at 360:

"This court will be disinclined to reverse the finding of a trial judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this court, an entirely erroneous estimate of the damage to which the plaintiff is entitled."

[51] That statement was adopted by this court in Kaufusi v Lasa [1990] Tonga LR 139, 140, and in Manu & Kingdom of Tonga v Muller [1997] Tonga LR 192, 193.

[52] It was submitted on behalf of the respondents that the judge, in making the awards that he did, failed to include at all, or alternatively, in sufficient measure, an award of aggravated damages to deal with that aspect of the respondents' claims.

[53] In view of the passages we have cited above, there can be no justification for a submission that the judge failed to include a substantial element of aggravated damages in his awards. The real issue on this aspect of the cross-appeal is whether the awards made sufficient allowance for the aggravating features that were undoubtedly present, or to put it another way, whether having regard to the aggravating features, the amounts awarded were so small as to be entirely erroneous estimates of the damage. This issue requires a consideration of those features, which we now detail.

[54] Mr Pohiva was suffering from asthma at the time – indeed he was absent from the Legislative Assembly on sick leave. He describes being taken to a police cell for the night of his arrest and that it smelled of urine – like a pigsty. His asthma intensified. He had difficulty breathing. He was held in the police cell for the following day and night. During this time he describes being very frustrated, stressed and very upset.

[55] During the time he was in the hospital until 9 September, he was under 24 hour police guard. His wife was allowed to see him, but anyone else had to obtain the consent of the appellant. Some visitors were refused permission. He was told that he was not allowed to use pen or paper or to have any other reading material except the Bible.

[56] On 9 September he was transferred to Hu'atolitoli Prison, where he was put in a maximum security cell, which upset him greatly. He described the conditions in the cell, totally confined and sleeping on a concrete floor on a Tongan mat he was allowed to take with him. He was confined in the cell except for twenty minutes for breakfast, about an hour for lunch, and twenty minutes for dinner in the evening. He was not allowed to attend church services, nor to participate in the recreational activities normally allowed to prisoners. There were the same restrictions on writing and reading material – he was allowed only the Bible. He was allowed one visit from his wife.

[57] The transcript of the third respondent's evidence was not included in the case on appeal. But we have no reason to doubt that his incarceration was on the same terms as that of the first respondent, and had the same consequences.

[58] Any assessment of general damages should include what Lord Woolf referred to as basic damages, that is compensation for the loss of liberty, in this case for 25 days. That is a substantial period for any person to be deprived of his liberty. Without any aggravating features, it would justify a significant award.

[59] The additional amount to compensate the respondents for the aggravating features should have regard to the following:

• [a] The respondents, law abiding citizens, were imprisoned in what was a clear breach of their rights under the Constitution. For example, the imprisonment of the respondents without legal foundation, was a breach of their rights under clause 14 of the Constitution not to have their liberty taken away except according to law. Quite apart from whether the breach gives rise to a separate cause of action, the flouting of their rights under the Constitution is itself an aggravating factor.
  
• [b] It is beyond comprehension why they were held in the maximum security section of the prison. They were treated in the same way as a person who had committed a major violent crime. No evidence was given on behalf of the appellant or the Kingdom why they were treated in the same way as the most depraved and dangerous criminals. They were in little short of solitary confinement. The Superintendent confirmed that in some respects they were treated worse than normal maximum security prisoners. Whoever ordained this method of confinement clearly intended to impose on them, without any possible justification, the worst possible form of punishment. He thereby behaved in a malicious and oppressive manner. The Kingdom and the appellant as Minister of Police must be held responsible for the consequences.
  
• [c] There can be no doubt that imprisoning the respondents in this manner added enormously to the humiliation, pain, shock, emotional suffering and deprivation, not only over the period of 25 days when they were so incarcerated, but for a lengthy time thereafter. It must be regarded as a severely aggravating feature.
  
• [d] In Thompson (above) at page 516 Lord Woolf said that aggravating features may include the way the litigation and trial are conducted. The Kingdom and the appellant were aware on 14 October 1996, when the third habeas corpus application was granted, that their actions were unlawful. But far from trying to make amends for their unlawful conduct, they have ever since persisted, by means of appeals, interlocutory applications, spurious defences, and attacks on the respondents at the trial, in attempts to avoid responsibility for what was done. The results of their persistent rearguard actions are that now, six and a half years after the wrong was done to the respondents, the respondents are still trying to obtain the compensation to which they are entitled. Had, instead, the appellant and the Kingdom promptly offered an apology, expressions of regret, and to pay a reasonable amount of compensation, the harm done to the respondents would have been considerably less.
  

[60] We have considered all matters relevant to the assessment of general damages and the features that aggravate those damages. We have reached the conclusion that the judge, in assessing the damages that he did, equivalent to $800 and $680 per day, failed to make an adequate allowance for the aggravating factors to which we have referred.

[61] In accordance with the principles we have described in [47] and [48] above, we do not ascribe specific amounts to each element. Rather we have taken a broad global approach to what is an appropriate award of basic and aggravated damages to compensate each respondent for the harm done to each. The judge, in making his assessment, took into account the injury done to the respondents by the manner of their imprisonment and the harm that has done to them. He appears not to have taken into account the other two features we have detailed in paragraph [59] above, namely the breach of the respondents' constitutional rights and the manner in which the appellant and the Kingdom have conducted this litigation. Taking all these features into account, we have concluded that the first and third respondents should have been awarded $30,000 damages. We accept, for the reasons the judge gave, that the award to the second respondent should be less. The appropriate amount for that respondent is $27,000. There are no grounds for distinguishing between the appellant and the Kingdom. The judgment should be against both, jointly and severally.

[62] It follows from these assessments that the judge, by omitting to take into account the two further features we have referred to in the preceding paragraph, made an error which has resulted in an award so much less than the appropriate award as to be an erroneous assessment of the damages to which the respondents are entitled. Accordingly, this court is justified in amending the awards to the extent we have indicated.

[63] To that extent, the cross appeal and the appeal against the Kingdom succeed.

Exemplary damages

[64] The judge made his findings on exemplary damages before he considered general and aggravated damages. We do not consider this to be the appropriate course. It is preferable, when the case requires consideration of basic, aggravated and exemplary damages to deal with basic and aggravated damages before exemplary damages. This is because, as Lord Woolf observed in Thompson at page 517, "exemplary damages should be awarded if, but only if, [the jury] consider that the compensation awarded by way of basic and aggravated damages was in the circumstances an inadequate punishment for the defendants." This approach was also adopted by this court in Kaufusi v Lasa & ors (above), Manu & Kingdom of Tonga v Muller (above), and Health Practitioners Registration Council & Kingdom of Tonga v Schafer-Macdonald [1997] Tonga LR 101.

[65] As we have already noted in paragraphs [40] and [41] above, the judge reached the conclusion that no exemplary damages should be awarded against the appellant. He did not consider an award of exemplary damages against the Kingdom. It is submitted on behalf of the respondents that the Judge erred in that respect.

[66] In considering the possibility of an award of exemplary damages against the Kingdom two aspects are to be considered. The first is the action of the Legislative Assembly in finding the respondents guilty and imposing the penalty of 30 days imprisonment. The second is the actions of the prison authorities responsible for the manner in which the sentence was carried out.

[67] As to the former we do not find any conduct of the kind that would justify a punitive award. There is no evidence to show that the Legislative Assembly acted otherwise than in the honest, if erroneous, opinion that it was entitled to consider whether the respondents were guilty of the charge and to consider an appropriate penalty in the event of guilt. It is correct, as was submitted on behalf of the respondents, that in doing so the Legislative Assembly breached the respondent's constitutional rights. But there are no grounds for concluding that in doing so it acted in an outrageous and high-handed manner.

[68] The position is otherwise with regard to the manner in which the sentence was carried out. We have already expressed our view of this in paragraph [59] (b) above. Whoever was responsible for punishing the respondents in the way they were, deserves to be condemned. And, as we have held, the appellant and the kingdom are liable for the actions of whoever was responsible, even if, as the judge found, the manner of the imprisonment was not because of express instructions given by the appellant. Further, we observe that exemplary damages are not only punitive, they may also be a deterrence with an effect beyond the wrongdoer: Lamb v Cotogno [1987] HCA 47; (1987) 74 ALR 188, 192. The circumstances in this case do not require us to address the question whether a party can be vicariously liable for exemplary damages: see Kuddus v Chief Constable of Leicester Constabulary [2001] All ER 193.

[69] The general and aggravated damages we have assessed above total $87,000. In Tonga, that is a very substantial amount. Bearing in mind that any element of exemplary damages is for the manner of the imprisonment not the imprisonment itself, we consider that that award contains a sufficient punitive element. We do not consider that any further amount by way of exemplary damages is necessary to show the court's condemnation of this conduct for which the appellant and the Kingdom must bear the responsibility.

[70] This ground of cross-appeal cannot succeed.

Clause 73 of the Constitution.

[71] It was submitted on behalf of the Kingdom that by reason of Clause 73 of the Constitution, this judgment should not be delivered while the current sitting of the Legislative Assembly continues since the appellant and the first respondent are both members of the Legislative Assembly. We do not accept this submission for the reasons expressed in the judgment of the court in Siosiua 'Utoikamanu & Kingdom of Tonga v Lali Media Group Ltd. & ors CA4/2003 and Prince 'Ulukalala Lavaka Ata & ors v Lali Media Group & ors CA 10/2003.

The result

[72] The appeal by the appellant is dismissed.

[73] The cross appeal by the respondents and their appeal against the Kingdom of Tonga are allowed. The awards of general and aggravated damages in the Supreme Court are quashed. In lieu, there will be the following awards of basic and aggravated damages against the appellant and the Kingdom of Tonga jointly and severally:

• [a] First respondent $30,000
• [b] Second respondent $27,000
• [c] Third respondent $30,000
  

[74] The respondents are entitled to costs on the appellant's appeal, and to a single allowance for costs on the cross-appeal and their appeal against the Kingdom, to be agreed or taxed. In case there are any further costs issues arising out of earlier applications, leave is reserved to apply to a single judge of this court on any costs issue.

Ward CJ
Burchett J

Tompkins J