Ayamiseba v Government [2008] VUSC 45; Civil Case 196 of 2006 (11 June 2008)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 196 of 2006

BETWEEN:

ANDY AYAMISEBA
Claimant

AND:

THE GOVERNMENT OF THE REPUBLIC OF VANUATU
Defendant

Coram: Justice C.N. Tuohy

Counsel: Mr. Laumae for Claimant
Mr. Gilu for Defendant

Date of Hearing: 11th June 2008
Date of Ruling: 11th June 2008

ORAL RULING

1. On 2nd May 2008 I gave a judgment on two preliminary issues which had been argued pursuant to an order under R. 12.4. The first preliminary issue was this:
   

a) whether a removal order under Section 17 A (1)(a) of the Immigration Act made on or about 9th February 2006 and quashed by order of the Court of Appeal dated 6th October 2006 protected persons acting pursuant to it from liability for false imprisonment for actions undertaken by them prior to 6th October 2006.

2. I answered the question in the following way:
   

The removal order of 9th February 2006 provides lawful justification for any acts done by authorized persons in the execution of that order prior to its quashing on 6th October 2006.

3. As a result of that finding on the preliminary issue, the defendant applied to strike out the remaining cause of action for false imprisonment relying upon the Court’s inherent jurisdiction. That application came before the Court on 2nd June and was adjourned until today for argument. Both counsel have filed written submissions in relation to the application and I have heard argument today.
   
4. Mr. Gilu’s submission is that the remaining cause of action for false imprisonment is founded upon the acts of the Police and Immigration Officers who executed the removal order on 9th February 2006. Since the removal order provided lawful justification for those acts, there can be no false imprisonment and that effectively disposes of the whole of the proceeding as there is no cause of action left to be determined by the Court.
   
5. Mr. Laumae did not dispute that proposition. Instead he indicated an intention to change the focus of the claim so that it was against the Minister of Immigration who made the removal order later found to have been invalidly issued as the instigator of a false imprisonment. There is no doubt that if a claimant can amend his claim so as to plead a viable cause of action, the Court should not strike out the claim until he has had an opportunity to do so. There is also no doubt that the instigator of a false imprisonment can be sued in respect of that false imprisonment: Ruddock v. Taylor [2005] VUCA 48.
   
6. However, that same decision of High Court of Australia illustrates the fundamental flaw in Mr. Laumae’s proposed amended cause of action. No one can be liable as the instigator of a false imprisonment unless it is proven that a false imprisonment took place. Here the effect of my ruling of 2nd May 2008 is that the imprisonment of the claimant by the police and immigration officers was not a false imprisonment because the removal order provided lawful justification for it. Therefore no one else can be liable for instigating an imprisonment for which there was legal justification and which was not a false imprisonment.
   
7. I have come to the firm conclusion that the cause of action pleaded and the proposed amendment to it are both untenable and the proceeding as a whole must now be struck out. I make an order accordingly.
   
8. After hearing my Ruling, I indicated that I would deal with the question of costs. Both parties have made submissions to me about that. Mr. Gilu’s submission is that the defendant having been successful in the litigation it is entitled to costs and there is no reason to depart from that normal practice. Mr. Laumae has submitted that costs should lie where they fall for two reasons. First, he correctly points out that honours were shared in relation to the preliminary issues which were subject of the judgment of 2nd May 2008. The defendant was successful in respect of question (a) but the claimant was successful in respect of the other important issue in question (b). Secondly, he argues that Mr. Ayamiseba has been treated unfairly in respect of this whole saga and appeals for the sympathy of the Court in relation to costs. He also submits that Mr. Ayamiseba has limited financial resources.
   
9. In relation to the latter points, the Court, without wanting to seem hardhearted, is not able to take into account the general treatment of the claimant in relation to the whole history on a costs application in respect of this specific litigation. Furthermore his financial circumstances are not strictly relevant to the issue of costs. The liability for costs does not depend upon the relative wealth of the party charged with costs.
   
10. However, the other point raised by Mr. Laumae does have merit. Honours were shared in relation to the argument on the preliminary issues which required substantial preparation and a significant argument in Court. In my discretion I consider the following order for costs is just:

The defendant is entitled to the costs of the proceeding apart from all work relating to the framing and argument of the preliminary issues which were the subject of the judgment on 2nd May 2008. In respect of that work, costs should lie where they fall. Costs are to be agreed or will be fixed by the Court on application made by the defendant.

Dated at Port Vila, this 11th day of June, 2008

BY THE COURT

C.N. TUOHY
Judge