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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
CIVIL CASE No. 112 of 2003
BETWEEN:
JESSE TEMAR
First Claimant
AND:
NOEL AMKORI
Second Claimant
AND:
NADINE ALATOA
Third Claimant
AND:
OBED NALAU
Fourth Claimant
AND:
PHILIP NATATO
Fifth Claimant
AND:
ANATOL KOULON
Sixth Claimant
AND:
THE REPUBLIC OF VANUATU
Defendant
Coram: LunabeK Vincent Chief Justice
Counsels: Mr. Daniel Yawha for the claimants
Mr. Dudley Aru the Solicitor General and Mr. Frederick Gilu for the defendant
JUDGMENT
INTRODUCTION
This is a claim filed by the six (6) claimants against the Republic of Vanuatu as the defendant. The claimants claim damages for false imprisonment, malicious prosecution. Further five (5) claimants claim also damages for the assault save the third defendant, Nadine Alatoa.
ISSUE
The issue before the Court is whether the Government should be held liable for the action of the Police Officers who falsely arrested and wrongfully imprisoned the claimants on 4 August 2004.
CASE FOR CLAIMANTS
The case of the claimants is that the Government of the Republic of Vanuatu is the employer of all the Police Officers who took part in the “Operation Procedure 2002”. In that Operation, Police Officers unlawfully arrested each and all the claimants at their homes, brought them to Police Station and unlawfully kept them in prison and charged them for seditious conspiracy, contrary to Section 64 of the Penal Cod Act [CAP. 135]. The claimants were then discharged by the dismissal by the Court of the charge laid against each of them and they were then freed. As such, the claimants claim that the Government of the Republic of Vanuatu is liable for the conduct of Police Officers who were found guilty of mutiny and those who participated in the mutiny but were found not guilty and those who were never charged of the said mutiny nor disciplined.
CASE FOR DEFENDANT
The case of the defendant, the Republic of Vanuatu is that the Government of the Republic is not liable for the actions of the Police Offices who falsely arrested and wrongly imprisoned the claimants on 4 August 2002 as the Police Officers were acting without authority and outside the scope of their employment.
FACTS AS AGREED AND EVIDENCE OF CLAIMANTS
The only dispute in relation to the facts in this matter relates to whether or not any of the claimants were assaulted. The other facts are agreed as follows:
Jesse Temar gave evidence to the effect that the Majority of the Police Officers were involved in the arrest and detention of the Claimants. Most of them are still working now for the defendant.
He stated also that the Operation Procedure 2002 was authorized by Api Jack Marikembo as the Deputy Police Commissioner for Operation. The Police Officers who were involved in this Operation used government vehicles and wore Police Uniforms during the operation.
He finally said that the Operation Procedure 2002 was not authorized by the Commissioner of Police, Mael Apisai.
THE LAW
The following are the relevant provisions of the Police Act [CAP. 105] and the Penal Code Act [CAP 135] to the issue before the Court:-
The above sections of the Police Act provide as follows:
“2. There is hereby established a police force called the Vanuatu Police Force.”
“3. “The Force shall consist of the Commissioner and such senior and subordinate officers as may from time to time be approved by the Minister.”
“4. (1) It shall be an essential duty of the Force to maintain an unceasing vigilance for the prevention and suppression of crime.
(2) The Force shall be employed throughout Vanuatu and its territorial waters for-
(a) the preservation of peace and the maintenance of order;
(b) the protection of life and property;
(c) the enforcement of laws;
(d) the prevention and detection of offences and the production of offenders before the Courts; and
(e) such other duties as may be expressly provided for by law.
(3) Members of the Force shall be entitled for the performance of their duties to carry arms which shall only be used on the instructions of the Commissioner or of a senior officer authorized by him and in accordance with the general directions of the Minister.”
“6. (1) The Commissioner shall have the command, superintendence and direction of the Force and, subject to the provisions of this Act and to the general directions of the Minister may-
(a) make such appointments, promotions and reductions in rank in respect of all subordinate officers as he may consider fit; and
(b) make Force Orders for the general government of members in relation to their enlistment, discharge, training; arms; clothing; equipment and other appointments and particular services as well as their distribution and inspection and other such orders as he may deem expedient for preventing neglect and for promoting the efficiency and discipline of all members.
(2) Any act or thing which may be done, ordered or performed by the Commissioner may with the authority of the Commissioner, be done, ordered or performed by a senior officer.” [Emphasis added]
“7. (1) The command and control of any particular unit of the Force in any place shall be vested in such member as may be appoint and by the commissioner to be in charge thereof. Any member so appointed shall be an officer in charge of police for the purposes of this Act.
(2) An officer in charge of police shall be subordinate to and carry out the orders of the Commissioner in all matters connected with-
(a) the discharge of the general functions of the Force as provided by Section 4; and
(b) the discipline, training, promotion and welfare of all members under his command.
(3) Every officer in charge of police shall be responsible for all public stores and moneys issued and delivered for the use of the unit of police under his command and for any other thing, money or valuable security coming into his possession by reason of his appointment and shall account for the same to the Commissioner or to any public officer authorized for that purpose.
(4) Every officer in charge of police shall keep such books and records and shall render such returns as the Commissioner may from time to time direct.”
“35. (1) Every member shall exercise such powers and perform such duties as are by law conferred or imposed upon him, and shall obey all lawful directions in respect of the execution of his office which he may from time to time receive from his superiors in the Force.
(2) Every member shall be considered to be on duty at all times and may at any time be detailed for duty in any part of Vanuatu.
(3) It shall be the duty of every member to promptly obey and execute all orders and warrants lawfully issued to him by any competent authority, to collect and communicate intelligence affecting the public peace, to prevent the commission of offences and public nuisances, to detect and bring offenders to justice and to apprehend all persons that he is legally authorized to apprehend and for whose apprehension sufficient ground exists.”
[Emphasis added]
“46. Any member who-
(a) takes part in any mutiny or intended mutiny amongst the Force; or
(b) knowing of any mutiny amongst the Force does not use his utmost endeavours to suppress such mutiny; or
(c) knowing of any intended mutiny amongst the Force does not without delay give information thereof to his superior officer;
shall be guilty of an offence and liable on conviction to a term of imprisonment not exceeding 5 years.”
“No person owing allegiance to the Republic of Vanuatu shall, within or outside the Republic, for any traitorous or mutinous purpose-
(a) endeavour at any time to seduce any person serving in the forces of the Republic or any member of the police force from his duty and allegiance to the Republic;
(b) incite any such person to commit an act of mutiny or an act of treason.
Penalty: Imprisonment for life.”
If a servant commits a tort in the course of his employment, then the employer is liable regardless of whether he himself has committed a tort, ‘every act which is done by a servant in the course of his duty is regarded as done by his master’s order, and consequently is the same as if it were the master’s own act... The employer is to bear a financial responsibility for those torts committed by his servant in the course of his enterprise.
“... the words ‘in the course of his employment’ means while the workman is doing what he is employed to do, i.e. discharging the duties to his employer imposed upon him by his contract of service. The word ‘employment’ in this connection must cover and include the things necessary and incident to employment”.
The House of Lords said whether the Home Office would be liable for the acts of the prison officers would:-
“...depend on the actions of the officers at the time of carrying the acts and seeing whether it falls within their normal duties. How it is determined is to ask whether the:
(a) Prison Officer were engaged in a misguided and unauthorized method of performance of an authorized duty, or
(b) Unauthorized acts so, unconnected with authorized duties as to be quite independent of and outside those normal duties. “
Lord Jauncey of Tullichettle who gave the leading judgment for the House quoted with approval Salmond and Heuston on the Law of Torts 19th Ed (187) to the effect that:
“...if the unauthorized and wrongful act of the servant is not so connected with the authorized act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment but has gone outside it.”
THE SUBMISSIONS
The claimants make the following submissions:
(a) They were acting under instructions of their superior and they say their masters authorized the wrongful act; and
(b) The Police officers who arrested the claimants were acting in the course of employment because as part of their duty they reasonably believe that the claimants committed an offence of seditious conspiracy under Police powers [CAP. 105] s. 49, s.72 (1) (2).
“A case in which the interpretation of the “course of employment” was in issue is Fiji Gas Company Ltd. –v- The Secretary for Labour (1975) 21 FLR 133).
The employee was employed as the local breach manager at the employer’s branch office in Lautoka. In order to carry out his duties some form of transport was necessary. He worked from 8 a.m. to 3 p.m., Monday to Friday and was obliged to send at report to the head office at Suva as soon as possible after the end of each month. Also report to the head office at Suva as soon as possible after the end of each month. Also report to the head office at Suva as soon as possible after the end of each month. Also from time to time he was called out from home to attend to equipment. He used the employer’s can for travelling from his home 5 miles away to the Lautoka Office; for travelling to areas where he was called upon to do installation and maintenance work and for attending to problems of maintenance when he was called out form his home. There were two other vans in use, which suggests that the work in general entailed carriage and transport of this kind. He was involved in a motor accident when driving his employer’s van on the evening of Sunday 2nd September 1973. He had been in the Lautoka Office for the greater part of the day preparing the monthly report for August 1973. He elected to work on the Sunday so as to be free to do other work on the Monday. It was when he was driving home that the accident occurred.
It was held that in the normal circumstances, an employee travelling in his employer’s van to and from work is not then in the course of his employment unless he is obliged by the terms of his employment to make the journey in that vehicle. In the present case, it was in the appellants’ interests that the respondent should travel to his place of employment at home in the van to enable him to fulfil his duties efficiently. Consequently the respondent was driving the van in the course of his employment when the accident occurred.
William J: The expression “in the Course of” – his employment, was also considered in St. Helen’s Colliery –v- Hewitson (supra). Lord Atkinson said at p.76.
“... the words “in the course of his employment” means while the workman is doing what he is employed to do, i.e. discharging the duties to his employer imposed upon him by his contract of service. The word “employment” in this connection must cover and include the things necessary and incidental to the employment.”
The explanation has been approved repeatedly. It was approved by Lord Atkin, in Blee –v- L. N. E. R. [1939] AC 126 at 131, who also quoted Lord Dunedin’s words in Davidson –v- M’Robb [1918] AC 304:
“In my view ‘in the course of employment’ is a different thing from ‘during employment’. It connotes to my mind the idea that the workman or servant is doing something which is part of the service to his employer or master. No doubt it need not be actual work, but it must, I think, be work or the natural incidents, connected with the class of work”.
16. The employees in this case have wide and general powers pursuant to Police Act to arrest, detain and charge the claimants.
17. The Police Officers were clearly engaged in performing their actual duty and not the task related or incidental to it.
18. The issue to be decided also in this case is whether those officers were acing in the course of their employment when they assaulted, arrested, imprisoned, charge and prosecuted the claimants.
19. They submit they were acting in the course of their employment. The same applies to mutineers who were acting in the course of their duty.
The claimants finally rely on the provisions of section 4 (12); 49 and 72 (1), (2), (3) and (4) of the Police Act [CAP. 105].
The defence submits to this effect:-
The defendant submits in essence that it is not liable for the actions of the mutineers as the police officers were acting without authority and outside the scope of their employment.
They further say in substance that this is not the case of an otherwise lawful operation carried out in an unlawful way such that the Government may be liable for the action of those involved. It was unlawfully conceived and amounted to an offence from its very conception.
The defence further says that this case is an example of where the police officers have committed such an unauthorized and wrongful act that they were not acting within the course of their employment. They were acting in such a way that they were guilty of mutiny.
They rely on the case of Racz –v- Home Office [1994] 1 All ER 97.
APPLICATION OF THE LAW TO THE FACTS
Applying the law to the facts I do accept the submissions made on behalf of the defendant and I reject the submissions adduced on behalf of the claimants. I set out the reasons below:-
The functions of the Police Force are set out in Section 4 of the Police Act. Section 35 of the Act provides for the general powers and duties of the members of the Police Force. Section 46 provides for the charge of mutiny.
The Police Officers involved in the arrests and detention of the claimants were Ron Tema, Peter Iauko, Alfred Kokoni, Malachi George, Samson Kalo, Samson Leto, Jean Yves Kali, George Twoomy, Erik Pakoa, Holi Simon, Api Jack Marikempo and Paul Willie Rueben were subsequently convicted of mutiny for organizing the arrest, detention and prosecution of the claimants.
The fact that the subordinate officers were not disciplined or charges for their part in the mutiny does not in anyway condone their action or excuse it. Their act were still without lawful authority and the government should not be held liable for them.
The facts as agreed show that Erik Pakoa, Holi Simon, Api Jack Marikempo and Paul Willie Rueben directed the other officers involved in the arrest to carry them out. All other officers involved were acting under their direction and control. They were not acting at the direction or control of the commissioner of police and were acting without lawful authority. Given the nature of the police as a disciplined force it cannot be the case that the government is liable for their acts based on unlawful orders as in this case.
Jesse Temar confirmed in Court under cross-examination that Mael Apisai was the Commissioner of Police at the time of the snap operation procedure. There was no evidence adduced before the Court to show that the Police Commissioner Mael Apisai gave the orders for the arrest and detention of the claimants. The Snap Operations Orders 2002 dated 3rd August 2002, Exhibit “C11”, was signed by Api Jack Marikempo and not by the Police Commissioner Mael Apisai. The agreed facts make it clear the Commissioner did not authorize the operation. The operation was against his appointment.
The Vanuatu Police Force is a discipline force which means that all officers must obey the orders of their superiors. Api Jack Marikempo upon signing the Snap Operation Orders 2002 gave the orders for the arrest and detention of the claimants. The chain of authority from Api Jack Marikempo was unlawful, it was a mutinous operation knowingly commenced to undermine the appointment of Mael Apisai as Police Commissioner. The arrest, detention and prosecution of the claimants were unauthorized acts by the police involved so unconnected with their duty to uphold and enforce the law of Vanuatu that the government cannot be held responsible for the actions of those involved.
Evidence has been produced in court that the arresting Police Officers were in uniform and they used a Government vehicle. It also produced in court that the Sergeant Krem Bihu who is the State Prosecutor appointed by the Public Prosecutor is the prosecuting officer. That evidence makes no difference. The officers acted unlawfully the fact that they used government property without authority does not make the government liable for their acts. This was mutiny.
On 5th December 2002, the Supreme Court of Vanuatu convicted Holi Simon, Api Jack Marikempo, Paul Willie and Erick Pakoa of inciting mutiny, kidnapping and false imprisonment. On 9th May 2003, the Court of Appeal upheld their convictions and sentenced each of them to two years imprisonment.
Given the police officers who wrongfully arrested and falsely imprisoned the claimants were taking part in a mutiny, the principle of vicarious liability in Bartonshell Coal Co which was applied in the Vanuatu Case of Tom J. Usamoli v. H. Nalpini and the Public Service Commission, [2003] VUSC 41; Civil Case No. 25 of 2001, cannot be applied in this present case because the Police Officers who were involved in the arrest and detention of the claimants were acting outside their course of employment.
The Judgment of the House of Lords in the case of Racz v. Home Office [1994] referred to earlier is a good persuasive authority. I accept and adopt it as the test I apply in this present case.
The second part of the test in Racz case is satisfied that is:
The unauthorized acts of the Police Officers were so unconnected with their authorized duties as to be quite independent of and outside those normal duties...
Therefore the government is not vicariously liable for the actions of the police officers against the claimants.
It is clear from the facts that the convictions of Erick Pakoa, Holi Simon, Api Jack Marikempo and Paul Willie Rueben by the Supreme Court and upheld by the Court of Appeal shows that these officers were engaged in unauthorized acts were so unconnected with their authorized duties as to be quite independent of and outside their normal duties. The Government cannot be held vicariously liable for actions of Police Officers who were acting outside their lawful authority.
On the basis of the above considerations, the Court makes the following ORDERS:
DATED at Port-Vila this 24th day of August 2004
BY THE COURT
Vincent LUNABEK
Chief Justice
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