Tukuafu v Fifita [2008] TOSC 26; CV 414 of 2007 (3 November 2008)

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

CV 414 of 2007

BETWEEN:

'EMALONI TUKUAFU

AND

1. POLICE CONSTABLE FIFITA
2. POLICE CONSTABLE FINAU
3. MINISTRY OF POLICE
4. KINGDOM OF TONGA
Defendants

BEFORE THE HON. JUSTICE ANDREW

Counsel: Mr Fifita for the plaintiff
Mr Little for the defendants

Date of judgment: 3rd November, 2008.

JUDGMENT

The Plaintiff alleges that he was assaulted by the 1st and 2nd defendants, both police offices, and he seeks damages for both assault and false imprisonment. There is also a claim for aggravated damages and exemplary damages.

The Plaintiff had originally claimed that a Police Constable NAUFAHU and a Police Constable Toki had assaulted him but that claim was withdrawn from the case as he said he had made a mistake and that the real persons who assaulted him were P.C. FIFITA and P.C. FINAU. In Cross-examination he said that he named P.C. NAUFAHU and P.C. TOKI as they were the only names he knew at the time and he had heard a policeman call out "NAU, stop assaulting he's had enough". He said he had named these two officers and issued proceedings against them as in that way he could learn who the real perpetrators were. He agreed that he had lied to his lawyer by telling him the wrong perpetrators. None of that is going to inspire much confidence in the accuracy of the Plaintiffs evidence nor in his veracity.

The Plaintiffs evidence is that on the night of the 17th February 2006 he had been drinking Kava. This was a Friday night and he says that after drinking the kava he drove or was driven by another and they came to the Dupincia bar in Nuku'alofa. There is evidence that the Plaintiff and a person with him (NIVALETI PAEA) had consumed a further litre of alcohol which they drank from cups. The next thing that transpired is that the Plaintiff made a remark to Constable Toki who was outside the Dupincia bar with other police. The nature of that remark is in dispute. The Plaintiff says that all he said was that Constable Toki should stop being boastful. Witnesses who were nearby including his own witness, NIVALETI PAEA say that he said more than this including "Stop being boastful or I'll beat the shit out of you". Others say that he also used the word "USI" meaning 'arsehole'. The preponderance of the evidence is that the Plaintiff did so insult Police Constable Toki and I think that is confirmed by the Constables reaction which was to chase the Plaintiff in a police vehicle, pull him over and subsequently arrest him.

I do not doubt that the Plaintiff was assaulted at some stage after he was arrested. There is no doubt that he received injuries. But the question is who assaulted him. The accused had said firstly that it was Police Constable Toki and Police Constable Naufahu. But as already stated he admitted that he had named them as a means to commence these proceedings and then to find out who it was who had assaulted him. I have no doubt that the accused was extremely drunk in this night. That appears to have led him to make an unwise and insulting remark to Police Constable Toki which appears to have led to his troubles with the police.

On the state of the evidence and on balance he simply does not know who it was that assaulted him. He reluctantly agreed in cross examination that he couldn't remember too much about this night. He did point at one stage to Constable Fifita as the one who assaulted him but I find that this evidence was unconvincing and few details of what Constable Fifita may have done have been adduced. Constable Fifita did, I think, give a credible explanation of how the plaintiff sustained his injuries, that is, the person sworn at assaulted the plaintiff.

In relation to the 2nd Defendant Police Constable Finau, his name was barely mentioned, if at all, in the evidence and not named as one who assaulted the Plaintiff. As a result a submission of no case was upheld and the claim against him was dismissed.

The Plaintiff had first said that Police Constable Toki and Police Constable Naufahu assaulted him. He now says they did not assault him. He admitted to lying about this. I cannot accept the Plaintiffs evidence. I think the simple truth is that he was too drunk to know who assaulted him. There is a considerable amount of evidence that it was in fact Police Constable Toki. But the Plaintiff is adamant it was not him. It does appear that Toki had the most reason to assault him as he was the one who had been sworn at and insulted by the Plaintiff. Mr Toki's evidence was to the affect that he cannot remember a thing about this night. Again however the Plaintiff says it was not Toki.

Given the state of the evidence I cannot be satisfied on balance that it was the 1st Defendant, Police Constable Fifita, who assaulted the Plaintiff. The plaintiff's evidence I find to be unreliable and unconvincing. Again I think the state of his sobriety indicates that he does not know who assaulted him. I am not satisfied it was Police Constable Fifita.

For all of these reasons I find that the Plaintiff has failed to establish his case and the claim is dismissed. It follows that I give verdict to the defendants.

Costs are awarded to the defendants.

DATED: 3 November 2008.

JUDGE