Garae v Commissioner of Police [2005] VUCA 28; Civil Appeal Case 27 of 2005 (18 November 2005)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

CIVIL APPEAL CASE No. 27 of 2005

BETWEEN:

INSPECTOR WILSON GARAE
Appellant

AND:

THE COMMISSIONER OF POLICE
First Respondent

AND:

VANUATU GOVERNMENT
Second Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice Bruce Robertson
Hon. Justice Daniel Fatiaki
Hon. Justice Patrick Treston

Counsel: Mr Saling Stephens for the Appellant
Mr Dudley Aru and Ms Florence Williams for the First and Second Respondents

Date of hearing: 14 November 2005
Date of decision: 18 November 2005

JUDGMENT

This is an appeal from the Judgment of the Supreme Court at Luganville, Santo, dated 12 September 2005 dismissing the entire claim of the Appellant.

The appeal seeks for Orders as follows:-

1. The appeal allowed.
2. The findings of the Court below be set aside and that the Court makes its own finding based on the evidence already adduced and are available before the Court.
3. Costs of and incidental to this appeal and those of the Court below.
4. Further or other Orders deem fit by the Court.
   

The appellant is a Senior Inspector in the Vanuatu Police Force who has served as a police officer for some 25 years.

In September 2001, he was selected to go to UN Peace Mission to Bosnia, Europe. In preparation he was required to undergo briefing, training and preparation for the Mission in Port-Vila. Arrangements were made for him to stay in the VMF camp at Cooks Barracks.

On 24 October 2001, at or about 4 o’clock in the afternoon, the Appellant claimed that a group of 5 uniformed officers of the Vanuatu Mobile Force (VMF) under the direction and control of Major Robert Diniro (the then Acting Commander of VMF), trespassed into the residence of one Monique Stephens, a relative of the Appellant at Anabrou area, Port-Vila. He said these VMF Officers arrested him and against his will escorted him to the VMF Headquarters where he was unlawfully confined until the following day when he was released.

He further alleged that the matter was reported to the First Respondent on 16th November 2001 but that no action was taken. Such inaction by the Respondents amounted to negligence in not resolving the matter within the bounds of discipline and/or in not punishing the officers concerned in the illegal operation.

The Appellant therefore took legal proceedings against the First and Second Respondents jointly and severally for damages in the sum of VT1,500,000 under the following heads:-

(a) Unlawful arrest .................................. VT 300,000

(b) Unlawful imprisonment ........................ VT 300,000

(c) Anxiety and emotional stress ................ VT 300,000

(d) Harm to good reputation ....................... VT 300,000

(e) Punitive damages .............................. VT 300,000

In his judgment, the trial Judge concluded:-

“In the circumstances of this case the Court is of the view that this is a vexatious litigation. With good advice, the case should not have been initiated in the first place. There is no cause of action. As such, the claims of the Claimant are dismissed in their entirety.”

The Appellant now appeals to this Court against the whole of the judgment of the Supreme Court.

The Appellant advances 13 grounds asserting that the trial Judge had erred which are as set out in the Notice of Appeal. In summary, the Appellant says the trial Judge erred in failing to:

1. Failing to consider and/or give any weight to the Defendant’s admission contained in the defence (ground (a)).
2. Failing to make an adverse ruling against the Respondents on the basis of fact the Court did acknowledge occurring as contended by the Appellant (grounds (b) & (c)).
3. In enlarging and dwelling on issues not pleaded enabling the Appellant to call evidence in rebuttal (grounds (d) & (e)).
4. In failing to consider and give any weight to the evidence of the Appellant and his witnesses (grounds (f) & (i)).
5. In failing to consider and give any weight to the inconsistencies in the statements of the Respondents’ witnesses (ground (j)).
6. In prejudging this matter in open Court on 19 September 2004 in Luganville when the Judge remarked that the Wilson case is similar to that of Sgt Victor’s case, tending to cause personal attack on Mr. Diniro (ground (2)).
   

In this appeal, counsel for the Appellant attempted to adduce new evidence on the matters canvassed in the Court below. He said he was taken by surprise and failed to call evidence in rebuttal. He also tried to rely on sworn statements which were not adduced before the trial Judge but was not allowed to do so.

Counsel for the Respondent made submissions on matters such as Section 40 of the Police Act [CAP. 135] which were not pleaded or advanced in the Court below but was not allowed to do so either.

It has become plain to us that the real and substantial issues were not focused upon or advanced by counsel in the Supreme Court. The contentions and grounds of the appeal cannot be adequately and fully dealt with by this Court in this appeal because it is clear that those critical issues were not considered, understood and pleaded by counsel in the claim and the defence before the Supreme Court in Luganville.

The following points at least will have to be properly and adequately pleaded:

1. The dates when the pre-deployment training for overseas UN Missions to Bosnia started and ended?
   
2. During the period of the pre-deployment training for UN Missions to Bosnia, what authority had the direction and control over the Members of VMF and Police who were selected to participate in the training and the training operations?
   
3. Is the defence of good faith under Section 40 of the Police Act [CAP. 40] relied upon? When counsel identify these and other issues which they now seek to raise in the Court of Appeal for the first time, they will be able to see what relevant evidence is required.
   

In this appeal, there are no findings on these critical issues, because they were not adequately and competently addressed. There are no proper findings in support of the matters which the Appellant and the Respondents each want to advance in their submissions before this Court and the Court below.

We are accordingly of the view that this entire case must be sent back to the Supreme Court for a re-trial. The real issues were never pleaded and determined and justice cannot be done in the absence of critical findings of fact.

The appeal is allowed. This matter is sent back to the Supreme Court in Luganville for a re-trial before the same judge.

All parties will pay their own costs in the Supreme Court and for this appeal.

DATED at PORT-VILA this 18th day of November 2005

BY THE COURT

VINCENT LUNABEK CJ
J. BRUCE ROBERTSON J
DANIEL FATIAKI J
PATRICK I. TRESTON J