IN THE PRIVY COUNCIL
KINGDOM OF TONGA

APPEAL NO 6/1983
(Supreme Court Case No 163, 165 of 1982)

BETWEEN:

LATA HELEN SOAKAI (Ma'ufanga)
APPELLANT

AND

1. ULUI TAULUA (Ngele'ia)
2. MINISTER OF POLICE (Nuku'alofa)
3. GOVERNMENT OF TONGA (Nuku'alofa)
RESPONDENTS

JUDGMENT

Appellant brought three separate actions against the respondents. These actions were consolidated and heard together. The fact that there are three different defendants is unimportant because, if, in respect of any matter claimed, liability in damages is established, the Government of Tonga accepts liability because all acts complained of have been done in the course of duty by servants of the Crown.

It is important to note the three separate claims which were made. They are:

1.	Action No 163 claimed of $1,000 damages for alleged unlawful interference with appellant's right to use her chattel, namely, a motor car.
2.	Action No 164 claiming the sum of $2,000 for an alleged assault.
3.	Action No 165 claiming the sum of $5,000 for false imprisonment.

Appellant was awarded the sum of $600 in action No 164 but she failed in her claims in respect of Action No 163 and action No 165.

On July 13, 1982 appellant was involved in an accident with her car. She reported the accident to the Police who gave her a notice that it was intended to prosecute her with an offence in respect of that accident. Only July 20 appellant returned to the Police Station concerning her driver's licence. Appellant was about to drive her vehicle away when Corporal Ului forbade her to do so. Appellant became angry and made what was called an extremely rude and vulgar remark to the police officer. According to the finding in the Supreme Court the Police Officer informed appellant that she was being put under arrest for using obscene language to a police officer. Appellant walked rapidly away - her hat fell off but she did not pick it up. She apparently went across the road to the Central Registry which was her place of work.

Corporal Ului went to the Central Registry, where appellant was engaged in private research work, and tried to persuade appellant to return to the Police Station. Appellant said she would not go unless accompanied by a policewoman - as a result of a telephone message a policewoman came and appellant was persuaded to go back to the Police Station. At the Police Station an unfortunate incident occurred. There wore some words and appellant threw a writing pad at the Police officer and it hit him on the cheek. The officer retaliated by slapping appellant in the face.

Appellant said she was pushed by a policewoman towards the cell. Appellant was locked in a cell which she described as having no bed, pillow or sheeting and that it was dusty and smelt of urine. This was about 2.30 pm. Appellant described the happenings of that night. She was released at 10 the following morning. Appellant was later convicted on a charge of assaulting a Police Officer but a charge of negligent driving was dismissed.

The learned judge dismissed action No 163 on the ground that no actual damage had been suffered. In respect of action No 165 it was held that the detention of appellant from 2.30 pm that day until 10 am the next day did not in the circumstances constitute false imprisonment so both actions were dismissed with costs.

The Notice of Appeal in action No 163 is mostly a narration of alleged facts but it can be said to raise 3 grounds, namely:

1.	The act of prohibiting appellant from the use of a chattel, namely her motor car, was an actionable wrong, and,
2.	Damage, which naturally flowed, was proved, and,
3.	The award of damages should include exemplary damages.

The Statement of Claim in Action No 163 is short. It reads:

"that on 20/7/82 at the Traffic Office at Nuku'alofa the First Defendant unlawfully forbade and prevented the Plaintiff from driving or exercising her right to drive a motor vehicle in accordance with her rights as holder of a valid driver's licence. The first Defendant is under the supervision of the second Defendant and are both servants of the Third Defendant. The Plaintiff has suffered great inconvenience and claims $1000 damages, and costs of $343.00.”

The claim is thus confined to the Act of first respondent, who has throughout been called Corporal Ului. We would so refer to him.

Corporal Ului purported to act under the authority of Sec 16 Sub-section (3) of the Traffic Act (Cap 99) which enacts that

"where any person is charged with … an offence against Section 23 or Section 24 of this Act his driver's licence will be suspended until the completion of his trial."

Section 34 provides that if any person fails to comply with the provisions of the Act or does any act in contravention of it he commits an offence and is liable to a penalty.

It is common ground that appellant had not, at the material time, been charged with any such offence and that there was no justification for the direction given by Corporal Ului. Corporal Ului handed the case over to other officers and he took no further part in the subsequent resulting deprivation of appellant's use of her car. Four questions arise:

1.	Was Corporal Ului's direction an actionable wrong entitling appellant to damages?
2.	Have damages been proved?
3.	Are any damages, after Corporal Ului handed appellant over to other officers and the continuation of the prohibition too remote and so not recoverable?
4.	Is appellant entitled to exemplary damages?

The Supreme Court found that an actionable wrong had been committed but that, since no damage had been proved, the action failed. No specific reason was given for the finding of actionable wrong but the court considered the cases of Roncarelli v Duplessis 16 DLR 691 and Hedley Byrne and Co Ltd v Heller & Partners Ltd [1963] 2 All ER 575. Neither is helpful. The Privy Council is of the opinion that well-known general principles must be applied. Appellant, subject to any lawfully imposed restraint, was entitled to the full free and unrestricted use of a chattel which belonged to her. Corporal Ului acting with the authority of his office gave a direction, albeit unlawful, that, in effect her licence to drive was suspended, so that she honestly believed she would be committing an offence if the direction were disobeyed. Corporal Ului intended that she should be deprived of the use of the car and it does not lie in the mouth of the defence to claim that any duty lay on appellant to defy or test the validity of the prohibition which obviously was intended to be an official direction. She need only act reasonably in all the circumstances. By acting on the direction, as Corporal Ului intended it to be acted on, appellant was deprived of the use of her car. In its nature it is very like taking possession of the vehicle but not so drastic but there is no difference in principle - only a difference in degree. In these circumstances the Privy Council is of the opinion, as was the Supreme Court, that an actionable wrong had been committed.

The Supreme Court held that damages in the nature of special damage was an essential ingredient in the action. The Privy Council does not accept that view. The invasion of such a right and the consequent loss of use of a chattel, which is in daily use, is a substantial loss and merits an award of general damages. Certainly it cannot be measured in actual amounts like the cost of hiring a driver or engaging a taxi, but like pain and suffering or the loss of a limb there must be paid such reasonable sum of money as will, so far as money can do so, compensate appellant for the intentional diminution of her right to the full use of her chattel, Lord Devlin said in Rookes v Barnard [1964] 1 All ER 367,407:

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 wrong 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.

The same broad view must be taken of the deprivation suffered. There is evidence upon which such an assessment can be made.

The general rule now is that a wrongdoer is responsible for all damage that should have been foreseen by a reasonable man. It seems clear that Corporal Ului was purporting to act under the authority of Section 16(3) the effect of which means a prohibition until appellant was dealt with by the Court for an alleged offence. It was an intended consequence. Even if not, it was reasonably foreseeable that the prohibition would be enforced by those to whom he committed appellant for further action. It was a natural and probable consequence which was known or ought to have been known to Corporal Ului that the prohibition might be enforced until trial. Appellant is therefore entitled to damages for the period during when she was wrongly deprived of the use of the car. No plea has been made that appellant should have mitigated her loss. If mitigation had been pleaded it was for the defence to prove the claim - not for appellant to meet it in anticipation. She simply obeyed the intentions and instructions of the police officer. If it be claimed she should have acted otherwise the allegation should be pleaded and proved. Prima facie if she acted reasonably, as she saw all the circumstances, it is difficult to see how any blame can attach to her merely because she failed to take steps to test the validity of the wrongful act carried out with all the purported authority of a police officer. She obeyed what appeared to be a lawful direction of the police and no complaint can be made merely because she did so.

The question of recovering exemplary damages can be dealt with very shortly. English practice is that exemplary damages, and the facts upon which they are sought, ought to be pleaded a defendant ought in justice be made aware of the claim. We have already shown the paucity of the present pleading. The relevant basis for awarding exemplary damages is set out in Rookes v Barnard (supra). It is that the conduct complained of is oppressive arbitrary or unconstitutional on the part of a servant of the Government. Those terms, of course, must be read in the light of the cases which support them. There is no evidence of such conduct. It appears there was a mistaken belief that appellant came within Sec 16(3). The only conduct complained of is that she was given a direction not to drive and it seems to have been done under a bona fide mistake. This is not an appropriate case for exemplary damages for the loss of use of the motor car.

The appeal in Action No 163 is allowed and the claim is remitted for an assessment of damages for the period during which appellant was deprived of the use of her car but there is to be no element of exemplary damages included. The damages are to be compensatory in the sense already discussed.

The Privy Council now turns to a consideration of action No 165 which is a claim for $5,000 for false imprisonment. The Supreme Court found that this claim had not been proved and so dismissed the action with costs.

It is common ground that appellant was arrested without a warrant. That there was proper ground for so doing is not the question. The gravamen of her claim is an allegation that she was not dealt with in accordance with her legal rights. The matter turns solely on the true construction of Sec 22 of the Police Act 1968 which is a provision aimed at safeguarding the rights of a citizen to freedom from arrest and detention without a formal warrant first being obtained for that purpose.

Sub-section (1) of Sec 22 provides:

A police officer making an arrest without warrant shall, without unnecessary delay and subject to any provision under any Act as to bail or recognisance, take or send the person arrested before a magistrate there to be charged or before a police officer of the rank of sergeant or above or before the police in charge of the police station.

This sub-section provides for a charge to be made, namely by taking the arrested person before a magistrate without unnecessary delay and laying a charge in respect of the alleged offence for which he has. been arrested. The sub-section then provides for an alternative course, namely, to take him before certain designated police officers. But, unlike the requirement to be charged when taken before a magistrate, the sub-section is silent on what is to happen when he is taken before such a designated police officer. This is provided for in sub-section(2).

Sub-section (2) provides:-

If it is not practicable to bring the person arrested before a magistrate having jurisdiction within twenty four hours after he has been so taken into custody, the police officer of the rank of sergeant or above or the police officer in charge of the police station shall inquire into the case and shall, unless the offence is murder or treason or in punishable with imprisonment of three years or more or because of the circumstances surrounding the offence the police officer is of the opinion that the person arrested should not be released as hereinafter provided in this sub-section, release the person arrested on his entering into a recognisance, with or without sureties, for reasonable amount to appear before a magistrate's court at a time and place to be named in the recognisance but where a person is kept in custody he shall be brought before a magistrate's court as soon as practicable:

Sub-section (2) is a conditional provision. It comes into operation "if it is not practicable to bring the person arrested before a magistrate having jurisdiction within 24 hours". If that condition is fulfilled a duty arises for the bringing of the arrested person before a designated police officer so a decision may be made which, of course, is of the same nature as that which a magistrate would perform. This does not mean a person can be held for 24 hours. As soon as it appears that no magistrate will be available as a practicable procedure sub-section (2) will apply. Each case depends on its own particular circumstances. There are two provisos under which the arrested person may be released but these do not touch the present case except that it appears appellant may have been released under one of those provisions, if it was thought fit to apply then.

The scheme of Sec 22 then is that, if a magistrate is available, the arrested person is to be taken before him without unnecessary delay, but, if that is not a practicable step which can be taken within a period of 24 hours, then the arrested person must be brought before a designated officer who must perform what might be called the functions of a magistrate.

The first question which arises is whether, without unnecessary delay, appellant was taken before a magistrate to be charged, which, of course, in its turn depends upon the practicability of doing so within 24 hours. The Supreme Court made the following finding:-

The Police Act 1968 as I have said deals with this situation in Sec 22 and the way that section is drafted signifies to me that it is only if the police consider that the accused person, the arrested person, cannot be brought in front of the Magistrate within 24 hours that they are under an obligation to consider the matter. In this particular case it seems to me that the police did and could and indeed should have thought that it would be easily possible to bring the plaintiff in front of a magistrate within 24 hours. All this happened in the early afternoon and there is always a magistrate available here during working days.

The first observation we make is that Sec 22 does not give the police power to decide whether or not an arrested person can be brought before a magistrate in accordance with the Act. It is question of fact in each case for the Court, if the procedure is questioned, and not a question of the opinion of the police officer who must make a reasonable assessment of the position. However, be that as it may, there is a finding of fact that a magistrate was available, so that procedure should have been carried out. No question arises on the alternative procedure requiring appellant to be brought before a designated police officer.

The result of this finding is that appellant should have had her arrest dealt with by bringing her before a magistrate. She was entitled to have the charge then dealt with according to procedures laid down before a magistrate. The police had no right to hold her longer than was reasonably necessary for the charge to be dealt with by the available magistrate. There was a clear breach of Sec 22(1) after the expiry of that time and thereafter she was unlawfully detained until her subsequent release. For that detention she is entitled to damages.

A number of irrelevant matters were discussed but the above are the issues. It really matters not in the conduct of a large police station what each officer did. The arresting officer may hand over an arrested person and leave other officers to carry out the routine moves so long as they are carried out. If they are not then the officer and others may be responsible for ensuing damages, but, carried out they must be.

We do not find it necessary to deal with the argument founded on a submission that Section 10 of the Constitution Act still applied in its original form that its purported amendment was unconstitutional. The arrest and detention of appellant up till the time when she should have been dealt with by a magistrate did not constitute either "imprisonment" or "punishment" contrary to Section 10 (as unamended). Any subsequent detention of appellant has been held to be unlawful and compensable for the reasons given so there is no occasion to resort to Section 10. This is sufficient to dispose of any claim based on an alleged breach of Section 10. Moreover, the Statement of claim is a simple claim for the tort of false imprisonment. If a breach of the Constitution was relied on as a cause of action it should have been pleaded and argument submitted to show that such a breach of constitution will support an action for damages - a matter which can be dealt with when it arises.

The appeal in action No 165 will be allowed and the claim is remitted to the Supreme Court to enable that Court to assess such damages as may be proper for the excessive period during which it finds that appellant was held after the procedure in Section 22(1) before an available magistrate might have been completed. Until then she was properly kept in custody.

In the result the appeals in actions No 163 and 165 are allowed and the judgments in the Supreme Court are set aside. Both actions are remitted for assessment of damages and costs. The costs of the present appellants are to be paid by respondents - the amount to be taxed, if not agreed on.