Nnamdi v Attorney General [2011] WSSC 91 (3 September 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

OKORO WILLIAMS NNAMDI,
of Nigeria but currently residing at Lotopa.
Plaintiff

AND:

THE ATTORNEY GENERAL,
sued for and on behalf of the Government of Samoa.
Defendant

Counsel: T S Toailoa for the plaintiff
M Lui and A Ah Leong-Oldehaver for the defendant

Hearing: 4 – 8 and 11 July 2011
Written Submissions: 4 August and 11 August 2011
Judgment: 3 September 2011

JUDGMENT OF SLICER J

1. This case reflects systemic and individual failures which, despite the best efforts of the Prime Minister, led to a shameful and tragic outcome. It involves Constitutional, and human rights, allegations of unlawful and inhumane conduct and avoidance of responsibility. It does not question the right of Samoa to deport persons whom it considers to be unwelcome or harmful to its citizens or community. That right is not questioned by this Court in these Reasons for Judgment.
   
2. In order to identify the issues and present the competing lines of evidence it is best to see the conclusions of the final act through the eyes of a dispassionate observer, with no interest to serve, Christopher Dalton ("Dalton") the Samoan Manager of Air Pacific who was on duty at the Faleolo Airport during the events of 19 – 20 January 2011. Dalton first recalled that the flight was to depart at 12:40 a.m. but later confirmed that it was scheduled to depart for Fiji, on which Okoro was to travel, was scheduled to depart at 5:30 a.m. The presence of Police Officers and Okoro Williams Nnamdi ("Okoro") were brought to his attention. His account continues:
   

"Wit I then came out to the car park area where I witnessed the person, William Okoro, was in a police vehicle.

...I believe I first saw him in the public car park...he was bound wrists, ankles and he was also gagged.

Pl can you pls. precisely describe how his hands were bound?

Wit I cannot recall exactly but I am pretty much positive they were bound behind him. His ankles were also bound together.

Pl and his mouth?

Wit and his mouth was also gagged...what I believe was by industrial tape or cloth around the head.

...after I observed Mr Okoro, I believed that on my first sighting of him, he was not fit to travel in those restraints. I went back to the office and made an internal assessment to advise the police that I don't think that he would be able to travel on our flight.

Pl did Okoro have a shirt on?

Wit yes.

Pl now after you made that assessment, if anything, did you do next?

Wit I was approached by Foreign Affairs official.

Pl was it Hele Matatia?

Wit that sounds familiar, if that is a boy's name.

...I had asked, I had made the assessment based on the passenger being as of an aggressive nature and when I asked him why he was bound and gagged as much, they said it was for his own safety.

...at this point there was also a police escort who had also approached me to say that he was escorting the passenger.

...I have confused the flight time...it was an early Thursday morning and the actual schedule departure is 5:30 a.m. not previously advised 12:40.

...yes, the police vehicle was parked in the loading/unloading zone which is in the very forefront of the terminal, down towards the left hand side approaching the terminal so right outside the seal and strap department.

...he was on the back seat, laid across the back seat.

...I would put this at around 2 hours before departure.

...I would have been standing no more than 2 or 3 feet away from the vehicle.

...his wrist and ankles were bound and he was laying, as you would on a bed, flat across the back passenger seat...he was lying on his stomach...the rear window...was down.

Pl so his head was towards you?

Wit yes...but facing down."

3. He returned to his office and formed the opinion that the flight would not take Okoro and for the second time returned to the scene.
   

"HH they said for it was his own safety...that was Foreign Affairs, then the police, an escort officer came over.

Wit the second time that I approached the vehicle I was told where it was and I went to it. It was through a side gate that comes into the airport area, the actual airport tarmac, what we call the baggage loading area.

...I was asked again by the Foreign Affairs officer and also the police escort to try and reassess the situation and I was assured that he would have an escort with him on the plane and they asked me to come and again, just assess the passenger, at which point I did.

...he was still inside the vehicle.

Pl still in the same position that he was in previously?

Wit that's correct.

...there were a number of officers. I would say 4 or 5.

...some were in uniform, some were in plain clothes. I believed them all to be police officers.

...I believe 2 officers were outside the vehicle and 2 officers were in the vehicle with Mr Okoro.

...they were in the rear together with Mr Okoro.

...they asked me again, was I sure we could not take him and after again viewing Mr Okoro I advised them that my decision was to remain still, to not board him.

...I tried to communicate, yes. I had to ask him if he wanted to leave; based on my assessment it looked like he did not.

...it was a bit but he was still gagged."

4. It was his opinion that Okoro did not want to go. Dalton stayed beside the vehicle for some 2 – 3 minutes. Significantly he was asked and answered:
   

"Pl now when the vehicle was in the front part, did you hear Okoro, at any stage, making any threats that he would bomb the plane?

Wit no, not that I recall.

Pl did he, can you recall whether he made any threats that he would kill the Prime Minister?

Wit not the Prime Minister, no.

Pl now how about when you saw him the second time when the vehicle had gone inside the airport area? Did you, at any stage, during those 2 – 3 minutes that you were there, did you hear Okoro making any threats that he would bomb the plane?

Wit again no threats to bomb the plane, that I recall.

Pl any threats, at that stage, that he would kill the Prime Minister?

Wit no threats I believe to kill the Prime Minister, no.

...in circumstances like these it is always good to get the second opinion of the captain of the plane, the pilot. His say is final. I had to get an agreement on both sides before we could proceed with a determinative action.

Pl sorry, you had to get the agreement from whom?

Wit from the captain, from the pilot of the aircraft.

Pl can you recall the name of the captain that was in charge of that flight?

Wit it's Captain Navid Khan.

Pl and did that happen?

Wit at that point in time our aircraft had arrived. I had radioed the aircraft from our traffic office seeking captain to come down and make an assessment of the passenger himself.

...he came to assess the passenger.

...upon his first arrival I was present, yes – probably a minute later both him and I went back to our traffic office to consult.

...well the captain came down, whereas he sighted Mr Okoro in the vehicle, I was there.

...that was the first time he did so, yes. We then, both the captain and I went back to my traffic office and that's when the captain went back to see, where I remained in the office.

...when Captain Navid first approached the vehicle where I was standing, where Mr Okoro was in, Mr Okoro saw the captain and he said that he would – as soon as he saw the captain he said that he would – and this was audible or loud, audible enough to make out clearly – that he would kill himself if got on the plane.

...he also mentioned that he would do something. He kept repeating that he didn't want to go. If he got on the plane he would do something. I believe he repeated it twice that he would kill himself that was when the captain and I left to make our assessment which was the whole time that transpired was a minute or two.

Pl now at that stage he was still gagged, right?

Wit that's correct.

...the rear door, I believe, was closed but the window was down.

...we saw this as a security or safety breach uplifting this passenger, Mr Okoro. We both universally agreed not to accept him for travel."

5. The Captain of the aircraft made two further personal assessments, but his view remained that he would not permit passage. Dalton was present on the third assessment and continued his account:
   

"Wit ...they took off his gag so he could answer questions from our captain.

Pl is it correct the gag was removed slightly upon the request by the captain?

Wit that's correct.

Pl and you were present when the captain asked Okoro questions?

Wit yes.

Pl can you recall what the captain asked him?

Wit captain asked him the same question I did; did he want to go.

...his answer was, give me my money and I will go.

...if we take you will you behave.

...that he would do something on the plane.

Pl now when Okoro mentioned to the captain that he wants his money, can you recall one of the police officers holding up an envelope and showing some U.S. dollars and telling Okoro, this is your money?

Wit I do not recall that, no.

Pl did you hear Okoro explaining to the captain that the police had lost his passport and that they took his money and that they are now trying to force him out of the country?

Wit not to that extent, maybe that those exact words but I do remember Mr Okoro saying that give his money and his stuff back and he will go.

Pl ...did you see him with any shirt?

Wit as I recall, I am unsure, and I'll just explain why. There were two officers who were sitting; one was sitting, one was sort of kneeling on Mr Okoro restraining him.

Pl sitting on Okoro?

Wit that's correct. That's why I am unsure if, when the vehicle was in the car area, if he had a shirt on.

HH so one officer was sitting on him.

Pl where of Okoro was this officer sitting?

Wit on his back, and another I believed was holding his legs."

6. Dalton made a written report, the relevant portions of which are be stated below. Dalton had been unable to retrieve the Captain's report. The report states:
   

"ADDITIONAL REMARKS: X1 DEPORTEE = OKORO WILLIAMS NNAMDI MR AND POLICE ESCORT = FILIPO/L MR – OFFLOADED DUE DEPORTEE VERY AGGRESSIVE, HEAVILY RESTRAINED AND YELLING ABUSIVE LANGUAGE (AT ONE POINT YELLED HE WOULD KILL HIMSELF ON THE FLIGHT). CAPT NAVED KHA SIGHTED PAX AND CONFIRMED TO OFFLOAD DUE PAX ONLY HAD ONE ESCORT, WAS A FULL FLIGHT AND MAJORITY FEMALE CREW, PAX WAS A HIGH RISK TO PASSENGER, CREW AND A/C SAFETY. MANAGER SAMOA AGREEDED WITH CAPT, PAX AND BAGS OFFLOADED."

7. Dalton was cross-examined but did not change the accounts he had given. He conceded that a 'bomb threat' could have been made in his absence and concluded his account in the following exchange:
   

"Def you also said that he was restrained because he was being aggressive is, that correct?

Wit that's correct."

8. His account, which differs from those of Police Officers, is accepted in full. The question of the production or otherwise of the display and presentation of U.S. dollars will be considered separately. Following the flight refusal Okoro was returned to the Apia police station, events which will be later considered.
   
9. Dalton's evidence is important in any evaluation of the credibility of other witnesses. It was corroborated by his written report and, in part by the evidence of an accompanying Immigration Officer.
   
10. The legality of the conduct of the aircraft Captain cannot be impugned. However, the threat of self harm did not offend the provisions of The Prevention and Suppression of Terrorism Act 2002 Part V. No device, substance or weapon was involved (Section 14) and no threat directed against another person. The resistance to a 'forced boarding' might have disrupted 'the services of an airport' as provided for by Section 14(1)(c) but such was a result of the techniques employed by the escorting officers responding to the claim by Okoro for the return of the 'lost money' before departure and the failure of the escorting officer to disclose or count the proffered amount. The Captain had a right to refuse transportation because of his overall duty to undertake a proper journey notwithstanding the presence of an escorting officer.
    

Onus of Proof

11. The Plaintiff alleges, as causes of action:
    
    • (1) Torts of assault and false imprisonment;
    • (2) Negligence or indifference to duty and breach of care to the person; and
    • (3) Negligence in the custody of property or breach of bailment.
      
12. Okoro invokes fundamental rights afforded by the Constitution as a basis for those causes of action.
    
13. The torts of assault and false imprisonment involve the issue of the standard of proof of criminal offences in civil proceedings. Phipson on Evidence 14 Ed. states at 4.39 the proposition as:
    

"The standard of proof required to prove a criminal offence in civil proceedings is no higher than the standard of proof ordinarily required in civil proceedings. However, the more serious the allegation, the higher the degree of probability that is required. The gravity of the issue becomes part of the circumstances which the court has to take into consideration in deciding whether or not the burden of proof has been discharged."

14. Phipson cites Lord Denning in Hornell v Newberger Products Ltd [1957] 1 QB 247, an approach consistent with the Australian equivalent of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, and is applied here. Bailment differs but here the evidence suggests a wrongful taking of money which would require a more stringent examination of the principle.
    

General

15. The Plaintiff claims damages in tort for assault, false imprisonment and breaches of duty of care required by statute. He invokes the Constitution Articles 4, 6 and 7 in support of his causes of action.
    
16. The essence of his case is that on return to Samoa, following arrest and detention, his Nigerian passport and moneys were held by Police and either lost or stolen while in their possession. Following his admission to bail and a trial in which he was found not guilty, he was released from the obligations of bail. Neither his passport nor money was returned with the consequence that he could not leave Samoa and travel, and when provided with special travel or transit documentation refused to leave until his money was returned. Despite his complaints and entreaties, officers of the Police and office holders of the State failed to properly inquire into the money issue or properly deal with recompense. A deportation order was made culminating in violence during the process which resulted in the Captain of the aircraft refusing to carry the Plaintiff as a passenger, and his subsequent detention in prison.
    
17. Some of the events involve conflicts of evidence which depend on word on word. Given the nature of the allegations the onus of proof remains with the Plaintiff and the requisite degree as provided for in Briginshaw (supra).
    
18. The Attorney denies any wrongdoing, negligence by any Police or public officer or any systemic error other than to concede the obvious fact that the passport had not been returned and a technical breach of procedure had occurred.
    
19. Consideration and resolution of the stark contrasts between the respective cases involve the Court recounting the evidence of a party with no interest to serve and who was a witness to the events at Faleolo Airport on the evening of 20 January 2011.
    

Events at Faleolo Airport on 20 January

20. It was common ground that on 20 January 2011, Okoro was taken from the Apia police station to the airport. It was common ground that Police and Immigration Officers were intending to deport Okoro on an Air Pacific flight to Fiji. It was common ground that Immigration Officers had intended and organised Okoro's travel to Kuala Lumpar where he could obtain a replacement passport from the Nigerian Embassy, and an onward journey to Lagos. It is common ground that the Captain of the aircraft refused to accept Okoro as a passenger. It is common ground that Okoro resisted efforts by Police to force him onto the aircraft protesting that he would not cooperate or leave until the claimed missing money was returned. It is common ground that a Police Officer had USD$1,000 in an envelope to give to Okoro as either expenses or recompense (the parties differ on the latter) but did not do so. It is common ground that at some stage Okoro was bound and gagged with duct tape.
    
21. Every other circumstance or event is disputed by the parties.
    
22. Examination and testing of those differences will colour the credibility of the Plaintiff, other witnesses and the respective cases of the parties.
    

History before Deportation Proceedings

23. Okoro Williams Nnamdi, born on 23 February 1974, is a Nigerian national and travels with a Nigerian passport issued in January 2008. Entries in a copy of that passport show extensive travel within the Pacific Islands of Fiji, Vanuatu, Samoa and American Samoa during a lengthy period. There were movements to and from islands before a visa had expired and extensions of visas whilst in a particular location. The pattern does not suggest visa hopping as a means of extension.
    
24. Okoro married an American Samoan in Apia on 18 December 2008, whom he had earlier met and traveled with in the Congo in February 2008. He had traveled to American Samoa via Kenya, Thailand, Korea and Fiji leaving the Congo in October 2008. The Attorney suggests that Okoro had previously married but there is no evidence but that the Samoan marriage was genuine.
    
25. On 3 July 2009, Okoro obtained US$D10,000 from Samoa Foreign Exchange. The arrangement was that he would pay the Samoan equivalent of $27,680. There were a number of components to the transaction. On 3 July 2009, before repayment of the Samoan currency, Okoro flew to Pago Pago.
    
26. Criminal proceedings were commenced against Okoro who returned, not by extradition or deportation but through pressure or an informal agreement between law enforcement agencies. Inspector Luatimu Samau ("Inspector Luatimu") had been sent to Pago to escort the Plaintiff. Significantly the Police Officer, central to the July investigation, the March 2010 prosecution, the receipt of property, a claimed assault and the events of January 2011, was the Head of the Criminal Investigation Division ("CID"). He was also responsible for the internal investigation of the lost passport and the claimed loss of money.
    
27. The trial of the alleged theft and false pretence charges was held on 18 March 2010, and a finding of not guilty made by the District Court. In his evidence during these proceedings Okoro sought to portray himself as a martyr wrongly charged as if there had been no dishonest dealing. This innocence, he claims, colours all of the subsequent events. The law is more complicated. The District Court had found that the then defendant had organised the transaction, received the money and decamped for American Samoa. The Court found that the Prosecution had not established that it was Okoro who had made the representation to the provider of the money and the reason:
    

"why Samoa Foreign Exchange approved the transaction is because "A" represented that the money was for Digicel to "L" and not because of any representation or false pretence by the defendant."

and for similar reasons of nexus dismissed the concurrent information alleging theft.

28. The Court has set out the above details for two reasons:
    
    • (1) whilst Okoro is entitled to the presumption of innocence and should not be tainted by a favourable verdict, he is not entitled to claim vindication or rely on the verdict to contest another area of the law namely, the right of the State to disallow visitors or non-citizens from continued residence; and
      
    • (2) Police who might harbour a grievance against someone 'acquitted on a technicality' ought not be allowed to seek retribution by some other means to redress an 'unjust acquittal'.
      
29. A further complication involves consideration of the legal principle described as Ex Torpe Causa Non Oritur Actio.
    
30. In his Reasons for Judgment, the District Court Judge stated:
    

"Although the Court is of the view the defendant is a rogue and an undesirable immigrant to Samoa it finds that the Prosecution has not provided the evidence to prove the defendant guilty of the offences he has been charged with."

31. That finding would be relevant to any decision maker exercising power under the Immigration Act 2004 ("the Act") Parts 4 and 7.
    
32. It is also relevant to another legal principle namely, 'even a rogue and an undesirable immigrant to Samoa' has rights afforded by the Constitution, statute and the common law doctrine of Ex Torpe Causa Non Oritur Actio.
    

Events Post Court Decision

33. Upon acquittal Okoro was released from bail. It had been a condition of bail that he surrendered his passport and any travel documents. On 10 September 2009, the Court had ordered their return to the Court. Neither the Police in Apia nor the prison authorities responded to the order or request by the Court. On 25 March 2010, a Registrar of the Court wrote to Tago, the Superintendent of Police and Prisons Services in Apia, advising him of the decision of the District Court dismissing the prosecution and the failure by the Department to supply the documentation. The Registrar also identified Corporal Tise Muliaga ("Corporal Tise") as the person who had received the passport. The letter concluded:
    

"The Court requests that the travel documents...be released immediately."

There was no response.

34. The claim by Okoro was not one made after the verdict of acquittal. On 9 November 2009 he had written a lengthy letter to the Samoa Victim Support Group setting out allegations which included:
    
    • (1) An assault by Police inside the station on 26 August 2009 by Greg Alalatoa who had been the responsible officer of Samoa Foreign Exchange at the time when the US$10,000 was paid out.
      
    • (2) Referral of Okoro by Police to a woman who worked at a car rental company whom they said might lend money to him while he was on bail and to whom he gave his mobile phone as security. His complaint was that when he attempted to repay the loan she refused to return the security. Police did little to assist despite the fact that he provided the woman's name.
      
    • (3) A further assault on 27 October by the same man Greg Alalatoa who had allegedly assaulted him on 26 August, and who had further assaulted him for a second time on 27 October at the police station while he was making his complaint.
      
    • (4) A meeting with Police on 10 November in which Police Officer Keti undertook to pursue the matter referred to in (3).
      
    • (5) Advice given by Police on 17 November that they could not locate the man, Greg Alalatoa.
      
    • (6) His sighting of Greg Alalatoa at the police station on 2 December.
      
    • (7) His complaint to a Judge of the District Court (presumably made during a bail/remand sitting) and the advice by that Judge that he takes his complaint directly to the Commissioner of Police.
      
    • (8) His meeting with the Secretary to the Commissioner of Police on the same day and her referral of him to the Assistant Commissioner 'called Su'a'.
      
    • (9) Intervention by Superintendent Seiuli Lene Tanielu at the meeting (8), and his advice that the matters would be further investigated.
      
    • (10) His reporting of the above matters to the then Assistant Attorney General. A copy of that document was forwarded to the then Commissioner of Police. It is significant that Corporal Tise was present during some of those events and was a participant in the events of 20 January 2011.
      
35. The documentation, especially the detail and specific identification of Officers weakens the claim at trial by the Attorney that Okoro's action is a sham and a concoction of lies made only subsequent to a technical acquittal.
    
36. No passport was returned to the Court or Okoro. Neither was any money (irrespective of its amount or currency) returned.
    

Passport and Money

37. Okoro returned to Samoa on 26 August 2009. No entry visa was recorded on his passport, simply an 'arrived' stamp. The Attorney disingenuously asserts that he returned voluntarily. That conclusion may be technically correct but is belied by the presence of a Samoan Police Officer on the aircraft who had been instructed to escort Okoro back to Apia, a letter showing agreement and pressure by American Samoan immigration and legal officials advising that his best course was to return and later seek readmission to American Samoa after disposition of the allegations of dishonesty. It is further belied by a document requesting extradition and a letter indicating an agreement between Samoan and American Samoan authorities.
    
38. Okoro was arrested on arrival at Fagalii Airport and charged with the acts of dishonesty. His passport was stamped and taken by an Immigration Officer Alvin Onesemo who was authorised by his superiors to hand the passport to Corporal Tise. Inspector Luatimu who had been sent to Pago Pago to accompany the suspect on his return journey was also present.
    
39. Okoro was taken in custody to the Apia police station. There are differing accounts, as between Police Officers, of the sequence of events at the station. The initial interview conducted by Superintendent Seiuli Lene Tanielu ("Superintendent Seiuli Lene") was transferred to Corporal Tise.
    
40. The Defendant's witnesses claim that two procedures were followed on 26 August, one which accorded with CID practice and the other with 'desk or watch house' procedures. The Court does not accept the dual process version. It accepts that:
    
    • (1) A properties document was completed; and
      
    • (2) No document was produced either as a single page inventory or as part of an 'arrest register' book designed to prevent false claims made by either Police Officers or detainees alike.
      
41. If both procedures were followed neither documentation was produced.
    
42. The Attorney contends that the Plaintiff has not shown or proved the amount of the missing money contending that the size of the wallet and volume of the currency themselves preclude the quantity of money.
    
43. Had the Officers of the State earlier conceded the property claim they would have saved their country many times that amount. Had Police performed their respective duties and admitted responsibility for negligence or defects of procedure or worse, the deportation, and its aftermath would not have tarnished Departments and individuals alike.
    
44. The onus of proof in relation to the sum of missing money passes to the Defendant. Neither the passport nor any sum of money was returned to the Court or the person detained. It is for the Defendant to show that the Plaintiff was deprived of a considerable amount of money not the converse. It is for the Plaintiff to show loss but, if found, a Defendant is at least required to produce evidence of a lesser quantum rather than appeal from the bar table. The Plaintiff's property was, by law, in the control of the Officers of the State and it is for them to show the claim to be against the weight of the evidence, on the balance of probabilities.
    
45. It is open for the Court to find:
    
    • (1) That Okoro's passport was lost through negligence and dishonesty of members of Samoa Police. It matters not which was the cause except in any assessment of punitive or aggravated damages;
      
    • (2) Moneys, not trivial, and other property, was taken into custody and bailment by Police and not returned either through negligence or criminal conduct;
      
    • (3) Inquiries to or responses by Samoan Police Officers, both senior and junior, were desultory and inadequate which, in turn, harmed not only the Plaintiff but the Office and Officers of the Department of the Prime Minister. The initial intuitive response of the Prime Minister was correct. He required that the problem be fixed and was not properly served in the process; a matter which will be later considered;
      
    • (4) The responses of denial and avoidance resulted in the events of 20 January and the subsequent prolonged detention of a foreign national, an exacerbation relevant to any assessment of damages.
      

Respective Issues

46. The events of 20 January were a culmination of two matters namely;
    
    • (1) the loss of the passport; and

(2) the unmet demands of Okoro for the return of the money.

47. Those matters, legally disjunctive, remain entwined as ones of fact.
    
48. Samoa was entitled to deport the Plaintiff. The Immigration Act 2004 Part 4 and 7, subject to s39, permits deportation. Deportation was not the problem. Okoro had returned whether, voluntarily or otherwise is irrelevant; and his passport confiscated. Samoa was required to ensure the means of deportation. The final note of the Executive reflected frustration and the urgency of the problem rather than distain.
    
49. A person, within the province of Samoan law, may be deported in accordance with domestic and international law. An airline is required to ensure that any passenger could disembark with valid entrance of transit visas or passports in another country. Samoa was required to deport Okoro to a receiving country either by transit or eventual destination.
    
50. Okoro was entitled, in law, to the return of his property held by Officers of State.
    
51. The intersection of competing principles shows personal and systemic failures.
    

History of Respective Issues

52. Okoro pursued his claim for the return of his passport and money following his release from bail in March 2010. He approached the Speaker of the Legislative Assembly who, in the best traditions of a democratic system, facilitated access to the Offices of the Prime Minister and Immigration. The Plaintiff correctly engaged the instruments of the State for remedy. He did not, as the Attorney claims, attempt subterfuge, lies or claims of ethnic martyrdom. The Prime Minister, through his Chief Executive Officer, recognised the problem and directed his Ministers and Officers to achieve a solution. The ensuing analysis identifies systemic rather than personal failure. The Court accepts in substance the evidence of officers of the Ministry of the Prime Minister and Cabinet and their subordinates responsible for Immigration. Those officers were required to ensure the legal deportation of a foreign national and did so properly. But the Prime Minister had also required the Ministry of Police to resolve the question of property entitlement.
    
53. The systemic problem is that officers controlling the different components of the 'problem' did not liaise. That problem, in turn, resulted in:
    
    • - Officers involved in the original prosecution became investigators of their own conduct and subject to inevitable 'self and conflict of interest'. Experience shows this process to be inevitably destructive;
      
    • - Police Officers taking sides in complaints by a foreign citizen about their own conduct, providing access to a 'corporate officer' namely, Gregory Ala'alatoa;
      
    • - the return of that 'offender' to Samoan jurisdiction;
      
    • - subjective opinion as to outcome of the initial criminal proceedings;
      
    • - arrest and processing involving in surrender of identity (passport) and property (moneys);
      
    • - investigation of subsequent claims of loss of passport and property;
      
    • - response to a direction by the Prime Minister; and
      
    • - conduct on 20 January 2011.
      
54. There was little, if any, objective analysis of the nature of the problem.
    
55. The case involves both the integrity of the instruments of Samoa and its response to the status and conduct of a foreign national.
    
56. Following release on bail Okoro pursued his claim for the refund of his property. On 15 September 2010, the Prime Minister wrote to the Minister of Police in terms which included:
    

"Briefly, Mr Okoro had moneys on him and passport, etc, which the Police took for safe custody. His passport disappeared and his moneys were never returned. He tried to get some help from the police and that help was denied. That is a very unchristian attitude. This man wanted to go home but without his moneys, he cannot leave Samoa.

This kind of behaviour is disgusting and we cannot tolerate it in the Police Force. Obviously, whoever is in charge of the division is responsible for the safe custody of properties taken by the Police should be disciplined. And I want to know the actions taken to remedy this deficiency.

Meanwhile from the "police budget", prepare a submission to Cabinet to approve a refund of this man's moneys to cover his fare to his country and hotel costs on the way. We must incur this liability arising from the stupidity and carelessness of the Police."

57. He referred the same issue to his Minister. The Minister in turn instructed his Commissioner:
    

"...to take action in whatever the Prime Minister is saying...advise the Nigerian accordingly and see what another step is from now on. Such cases like this reflects bad outcome to the Ministry of Police and Prisons."

58. The advice of the Prime Minister and the Minister of Police and Prisons Services was not followed by the then Commissioner.
    
59. The issues can be refined as:
    
    • (1) Samoa could not deport the Plaintiff without a passport or transit documentation;
      
    • (2) Okoro was entitled as a private right to the return of property, including money, before departure;
      
    • (3) The Constitution protects (2) over (1).
      

Private Rights

60. The above analysis is separate from issues of private rights of action alleging assault and false imprisonment.
    
61. The Plaintiff alleges the torts of assault in 2010 and January 2011, separate from the property question protected by the Constitution. They remain causes of action, open to all, but differ from the issue of property, central to these proceedings.
62. The secondary claim of false imprisonment involves reasonableness and Constitutional protection rather than initial lawfulness, unlawfulness or illegality.
    
63. The further arrest or detention of the Plaintiff on 20 January 2011 was lawful.
    
64. The Court finds as matters of fact and law that:
    
    • (1) Okoro threatened, at least, to take his own life if forced onto the aircraft and, as such brought into effect the provisions of The Prevention and Suppression of Terrorism Act 2002 Part V;
      
    • (2) He did not threaten the life of the Prime Minister or other members of Cabinet;
      
    • (3) He maintained, rightly or wrongly, that he was entitled to remain in Samoa; and
      
    • (4) The Police Officers were entitled to retain him in custody at the airport.
      
65. The plea of unlawful imprisonment depends on the Constitution Article 6 which states:
    

"Right to personal liberty – (1) No person shall be deprived of his personal liberty except in accordance with law."

66. The pleading engages, not the rights of detention but the 'reasonableness or otherwise of its terms.' Okoro was not a detainee or prisoner held by criminal statute. He was a detained person subject to the Immigration Act ("the Act") Section 33(4) but not otherwise (Sections 32, 33). The Defendant did not seek to invoke the Act section 34 (5). The Plaintiff was detained by virtue of Section 33 and held in custody in accordance with Section 33(7), becoming a person to be deported 'as soon as possible.' The State attempted to do no such thing. It held him in prison indefinitely. An officer of the relevant Department told the Court that following detention the Department took no further interest or involved itself in the future of the Plaintiff. The Court accepts that Officers conducted some further diplomatic inquiry but effectively did nothing practical. That failure would result in a foreign national remaining in prison for life (Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2).
    
67. The systemic problem raised by the Prime Minister in his directives is exposed. The public officer of Department A protects or avoids the conduct of a public officer of Department B despite explicit instructions by the Prime Minister of a democratic state. The Act Section 44 does not protect the Attorney. The Act Section 46 requires cooperation by Police. Here a foreign national was detained because of failure by the Police to respond to a complaint and following a direction by the Prime Minister to 'cooperate'. The systemic problem was compounded by the Attorney in his conduct of these proceedings. He admitted no liability other than the accidental loss of a passport. Conduct during trial is relevant to any assessment of damages.
    
68. The parties in their pleadings or presentation of their respective cases have failed to identify the causes of action or issues raised by the factual circumstances of the events. Each seeks advantage through pleading and argument and each makes no concession. In doing so each presents the Court with undefined and inchoate problems or issues and a multitude of legal principles. Neither ought complain of delay in resolution.
    

Assault

69. It is now necessary to return to the claim of assaults. The Plaintiff claims assaults at the police station in December 2010 and January 2011 but effectively alleges ongoing hostility. Doubtless, Officers did not welcome his complaints but their responses were coloured by their attitudes. No Police Officer accepted responsibility for any misconduct or even unintentional error. Each presented an explanation of perfection. Each protected the other.
    
70. The Court now returns to the description by Dalton of the events of 20 January. It does so in the light that it accepts him as a reliable witness and the knowledge that two of the Police witnesses present had been involved in:
    
    • (1) the original investigation of the fraud;
    • (2) the return of the Plaintiff to this jurisdiction, his arrest and detention;
    • (3) reception of the complaints made in 2009;
    • (4) the investigation of those complaints;
    • (5) investigation of his subsequent complaints;
    • (6) investigation and report of matters referred by the Prime Minister;
    • (7) the deportation and detention of the Plaintiff;
    • (8) their evidence at trial; and
    • (9) systemic failure.
      
71. Proposition (9) is clearly apparent. Experience demands that any system or a public officer challenged ought be investigated by another independent of the allegation. Here each attempted to transfer responsibility to another. Each individual was tainted by the outcome and the system suffered as a consequence.
    

Deportation and Immigration

72. Togatalima Milford ("Milford") was responsible to Cabinet as the Assistant Chief Executive Officer of the Samoan Immigration Services. The problems had come to the notice of the Prime Minister who promptly attempted to resolve the issue. He directed the Commissioner of Police and the Department of Foreign Affairs to investigate and resolve the issues. The Prime Minister spoke directly with Milford. Regrettably there was little liaison or coordination between the two Departments of Police and Immigration. One of those issues involved the lost passport without which Okoro could not travel; the other Okoro's property.
    
73. The nearest Nigerian Embassy equipped to issue a replacement passport was situated in Kuala Lumpar Malaysia. On 30 July 2011, the Passport Office of the Prime Minister's Department issued a Certificate of Identity permitting the bearer:
    

"...to travel and enter Malaysia to obtain a new Nigerian passport from the Nigerian Embassy office to facilitate his return travel to Nigeria. Valid for a single trip from Apia to Malaysia only."

74. Milford was advised in December that arrangements had been made to enable Okoro to leave Samoa on 4 December, and on 2 December he declared the applicant a prohibited immigrant pursuant to the Immigration Act 2004 Section 29. The reasons given by the Minister's delegate were stated as:
    

"1. That the Person remains in Samoa in breach of the provisions of the Immigration Act and;

2. That the Person is likely to be a danger to the peace, order or good governance of Samoa and;

3. The Person is without sufficient lawful means of support, and;

4. The Person is otherwise regarded by the Minister as an undesirable immigrant."

75. The Deportation Order, grounds 1 and 4 were within the power afforded by the Act section 30 (K) and, accepting for the purpose of these Reasons for Judgment, probably permitted (on the basis of confidential security material) by virtue of subsection (e). Irrespective, the Delegate had power to issue an Order protected, subject to the Constitution Article 4, by the operation of Section 30(4).
    
76. Milford and his officers were entitled to rely on intelligence briefings prepared and submitted by the Transnational Crime Unit in support of his or their decision. That information had been reported to the Attorney General by letter dated 30 November 2009.
    
77. The Delegate did not seek to exercise any power of recovery of debt or expenses as provided for by Section 31(4) and the costs of deportation were payable in accordance with subsection (5) which provides:
    

"The Minister may, in the Minister's discretion, direct that the whole or part of the costs and expenses referred to in subsection (3) shall be paid out of money appropriated for that purpose by the Legislative Assembly."

78. The significance of subsection (5) will be seen when the eventual decision to provide travelling expenses deducted from any moneys claimed by Okoro is considered.
    
79. Requests for transit visas made to Australia on 7 September and New Zealand on 19 October 2010 were refused. A further complication was the inability of the Nigerian Embassy in Canberra to process replacement passports.
    
80. Extradition required transit permission by an intermediate country, without which Okoro could not travel, voluntarily or otherwise. Australia and New Zealand had refused transit accommodation presumably on the advice of the Secretariat of the Pacific Immigration Directors Conference ("PIDC"), local police and the Transnational Crime Unit ("TCU"). Arrangements for the scheduled flight on 4 December required transit approval by the governments of Fiji and Papua New Guinea; the latter altered its agreement and refused transit facilities. In doing so the refusal was unwise. The intervention reflected national rather than regional interests outside the control of the foreign national interest or a nation state. The proposed journey was cancelled at the last moment.
    
81. Concurrent with the above events on 2 December Milford requested the then Commissioner of Police to locate and detain Okoro pending the proposed deportation. Execution of that Order was postponed upon the failure of the 4 December flight.
    
82. On 19 December Okoro was spoken to by Inspector Luatimu and taken to the Apia police station. It is possible that he was there advised of the impending deportation without detail since no arrangements had been made. Superintendent Logoitino Filipo deposed in his affidavit at paragraph 11 that:
    

"On 13 January which is the date Okoro was booked to leave for Fiji, Okoro did not come to the airport. We had already informed him of his travel dates. I had informed him by phone as I had his cell phone number. I was also advised by Foreign Affairs that they had informed him of his travel dates."

83. His evidence, challenged in cross-examination was unconvincing, as to the method or timing of the claimed message to the cell-phone. In fairness he had been given little notice by Immigration Officers. There was little, if any, evidence that Officers of Immigration had advised Okoro of the date and time of the flight. Inspector Herbert Aati of the Transnational Crime Unit more properly described the attempts to locate and notify the deportee in the following terms:
    

"3. I personally became involved in this matter on or about Wednesday 12 January 2011 when I was instructed to assist CID officers in locating the Applicant; specifically I, together with several other Police Officers, were instructed to try to locate the Applicant as he was scheduled to leave Samoa on a flight to Nadi the following morning, Thursday 13 January 2011 at around 5:35 a.m. and there were concerns that he might not show up at the airport to board his flight.

4. There were about three (3) other officers who accompanied me in looking for the Applicant. We headed out at about 2 p.m. (in the afternoon). The difficulty we faced was that we did not have information of a specific address for the Applicant; the only information we had was that the Applicant lived somewhere in Lotopa.

5. It was only after canvassing much of Alafua, Lotopa, Alamagoto and neighbouring areas that we were able to locate the Applicant's place of residence which was at Lotopa. Late that night, at about 11 p.m., we received this information of the Applicant's address...

6. Two (2) officers remained behind at this premises in case the Applicant returned and the rest of the officers including myself parked our vehicles in and around that area to await further developments and to see whether the Applicant would return.

7. At about 4 a.m. in the morning (now Thursday 13 January 2011), the search was called off as it was too late, given that even had the Applicant been located it was past the time required to him to check-in for his flight scheduled to leave 5:35 a.m. that same morning."

84. Okoro had engaged solicitors and on 12 January 2011, they had written to the Commissioner of Police (cc: the Prime Minister, Minister of Police and the Attorney General) setting out the history of the complaints and stating inter alia:
    
    • (1) "The sole issue here is compensation due to our client for his properties that were confiscated by Police and now deemed lost plus all expenses he incurred as a consequence of his being detained here unnecessarily due to the failure of your Ministry to locate his passport."
      

(2) There had been no reply to his earlier claims; and

(3) Quantification of a general claim but a willingness to negotiate and acknowledging that 'there had been some development in our client's travelling arrangements to return to Nigeria. He writes however for his claim to be lodged and considered by your Ministry prior to his departure.'

85. In furtherance of negotiations the solicitor requested a response and the letter concluded with the terms 'we trust we can settle this matter amicably without recourse to costly litigation.'
    
86. There was no formal response other than a terse and unhelpful memo from the Prime Minister.
    
87. The consequence was the detention of the deportee.
    

Flight 13 January

88. The Respondent accepts in its chronology of events that:
    

"The day right before the Applicant's flight, the Police took the initiative of trying to locate the Applicant in an effort to ensure that he would not miss the flight the following morning. However, he could not be located that evening and the following morning, although the Police looked extensively. The Police did go to the Applicant's flat at Lotopa, but were informed by other individuals who also lived on this compound that the Applicant had left his flat that morning and had not returned."

89. Cabinet had decided on escort arrangements the previous day but it remained incumbent on Police to locate and notify Okoro of the requirement. On the same day Okoro had gone to his solicitors who had informed the Commissioner of Police of his presence at her office. Superintendent Logoitino accompanied by two CID officers went to the office and detained the Plaintiff. Okoro told them that he would only leave if he was paid the amount claimed from Government.
    
90. The Court accepts that the Superintendent, who had long been involved in the proceedings, led Okoro to believe, that he would be first taken to the Commissioner to discuss the question of the money. He failed to do so and instead placed him in confinement.
    
91. The Court finds that Okoro was not responsible for the missed flight and police remiss in providing sufficient forethought and notice to the extradition. But the second central problem requiring resolution remained. Okoro was refusing to leave until the return of his property. Subterfuge by Superintendent Logoitino in leading the deportee to believe that he would meet with the Commissioner exacerbated the problem. Superintendent Logoitino met with the Commissioner but not Okoro.
    
92. Events subsequent to the detention on 13 January will be considered in relation to the issues of assault, transportation and the events at Faleolo Airport.
    
93. Australia and New Zealand persisted with their refusal to provide transit accommodation. Meredith, himself a member of PIDC, renewed his efforts and in January 2011 succeeded in rearranging transit facilities through Fiji and Papua New Guinea. It was on this basis that a flight was booked from Apia to Kuala Lumpar via Nadi, Honiara and Port Moresby between 13 – 15 January 2011. Okoro did not attend the airport claiming that he had not been advised by police and, in any event, his disputes about the lost money had not been resolved. It was that failure which led to the events of 20 January. Milford had complied with the directions of Cabinet and the Prime Minister. His later comments reported in the Observer were unhelpful in the resolution of an ongoing problem. Later action will be separately outlined. Immigration Officers had provided insufficient notice to Police to allow them to advise the detainee and arrange for his attendance at the airport. Irrespective the question of restitution remained unresolved.
    

Prime Minister and Cabinet

94. Following the dismissal of the criminal charges Okoro approached the Court to retrieve his passport but was told that it had not been forwarded by Police as directed. He then met with Superintendent Seiuli Lene but a search of the Exhibit Room was unsuccessful. He returned on 25 March and on that day a Deputy Registrar wrote to Superintendent Tago advising of the Court's request of 10 September for its return and advising that the prosecution had been dismissed on 18 March 2010. The letter concluded that:
    

"The Court requests that the travel documents of the said defendant be released immediately."

95. Okoro had previously complained about his treatment by Police through the Samoa Victim Support Group in a letter forwarded to the Commissioner of Police dated 9 November 2009. There was no satisfactory reply.
    
96. Following acquittal the Plaintiff made a formal claim to the Commissioner of Police which included the return of his passport, costs of replacement and the return of 26,000 Yuan which he claimed had been 'lost' or 'retained' by Police. Again there was no satisfactory response. The letter of 21 July 2010 specifically referred to the 26,000 Yuan. Neither Milford nor Vaosa Epa ("Epa") became aware of the money question until much later. The claimant was able, through the good offices of the Deputy Speaker of the Legislative Assembly, to obtain an audience with the Prime Minister. There were four meetings between the Prime Minister or his officers and the Plaintiff between 8 June and 15 September. The Prime Minister acted promptly and correctly as befits his office. On 8 June 2010 he wrote through the Chief Executive Officer, directly to the Commissioner of Police in the following terms:
    

"Mr. Williams Okoro came in to see us this morning following a request he made to me yesterday through the Deputy Speaker at the Manu Samoa celebrations at Mulinu'u.

We had contacted the closest Nigerian High Commission which is in Australia through our Canberra High Commissioner when this was first brought to our attention. The advice our High Commission received from the Nigerian High Commission was that they do not issue passports anymore and that the closest Nigerian Office that does this is in Malaysia. Mr. Okoro when he saw us this morning also advised that he had spoken to the Nigerian High Commission and received the same advice.

Mr. Okoro at our meeting today requested if our government can issue him with a legal travel document to enable him to travel to Malaysia to obtain a new Nigerian passport.

On the basis of Okoro's request which also seems to us to be the only option for Mr. Okoro to travel out of our country, we will need to meet with your office, the Office of the Prime Minister and the Attorney General for advice on what is indeed possible and the necessary steps to be taken. We also need to bear in mind that a travel document issued to Mr. Okoro would not only has [sic] to be accepted by Malaysia for entry but also by any country he transits.

Please let me know your views before I arrange a meeting with the Attorney General and the CEO of the Ministry of the Prime Minister."

97. On 15 September, the Prime Minister personally wrote to the Minister and Commissioner of Police directing a refund of retained money and costs of transfer. The letter was explicit stating:
    

"The above Nigerian gentleman has seen me about four (4) times – the fourth time tonight, for assistance. I am leaving over the next few hours for overseas and I would like you to help him urgently as no one else would.

Briefly, Mr Okoro had moneys on him and passport, etc, which the Police took for safe custody. His passport disappeared and his moneys were never returned. He tried to get some help from the police and that help was denied. That is a very unchristian attitude. This man wanted to go home but without his moneys, he cannot leave Samoa.

This kind of behaviour is disgusting and we cannot tolerate it in the Police Force. Obviously, whoever is in charge of the division is responsible for the safe custody of properties taken by the Police should be disciplined. And I want to know the actions taken to remedy this deficiency.

Meanwhile from the "police budget", prepare a submission to Cabinet to approve a refund of this man's moneys to cover his fare to his country and hotel costs on the way. We must incur this liability arising from the stupidity and carelessness of the Police.

I am copying Mr Okoro this letter so that he knows the Government is not as irresponsible as its Police Officers and at least give him some hope that at last, he can go home."

98. On 29 September 2010, the Minister again wrote to Acting Commissioner Pagamalie Penani Lemuelu requesting action and resolution. The letter stated:
    

"I write to you regarding the above matter.

I received a letter from the Prime Minister regarding Mr. Okoro Williams Nnamdi's case, and is attached for your information.

I instruct you and the Ministry to take action in whatever the Prime Minister is saying.

I also want you to advise the Nigerian accordingly and see what another step is from now on.

Such cases like this reflects bad outcome to the Ministry of Police and Prisons."

99. Okoro had raised three issues, namely:
    
    • (1) He had returned to Samoa voluntarily, albeit under pressure, to answer the charges brought against him. His acquittal entitled him to compensation between return and trial. For reasons later stated he was not entitled to such compensation.
      
    • (2) The 'loss' or unauthorised taking of his passport prevented his travelling and he sought compensation for its replacement.
      
    • (3) Property held by Police, including a significant sum of money had not been returned.
      
100. The Prime Minister had correctly directed his instructions to the question of loss of property and money.
     
101. The response by the Commissioner was to initiate an inquiry which was less than satisfactory.
     
102. The Cabinet Minute of 5 October 2010 represented the advice provided by Officers of the Departments namely, the appropriation of money in the following terms:
     

Fare	SAT$20,000
Passport	SAT$ 170
Transit Visa	SAT$ 230
Visitors Visa
Malaysia	AUD$9
Claim	USD$ 1,000

103. A subsequent Minute dated 13 October 2010 ("Exhibit P10.1") included the notation:
     

"The Ministry of Police and Prisons to fund from unforeseen expenditure."

104. The notation might explain the reluctance by the Commissioner of Police to properly consider the Plaintiff's claim for properly and accept responsibility.
     
105. The systemic failure to address the problem and the subsequent conduct of Police Officers to accept responsibility and react to the Plaintiff's complaints ought be salutary in future. The actual value of the compensation claim for the 'lost money' was AUS$3,924.
     
106. To this must be added the costs of the escort approved on 12 January 2011 in the terms:
     

Fare (APW/Nadi/APW)		SAT$1,515
DSA (Nadi)	FJ$303 x 3	FJ$ 909
Incidental	SAT$30 x 3	SAT$ 90
Accountable allowance		FJ$ 800

107. An earlier memorandum dated 16 August 2010 ("Exhibit J2") stated:
     

"Look at this Nigerian and give your advice; there are two things, the Nigerian may be lying, two, maybe he is correct but the Police may have used some money he had.

I think this person is in trouble in Samoa because of the carelessness of Police.

Perhaps that is the reason for them having deliberately lost the passport, is that they took the money of this person. I think give some assistance, about US$1,000.00 to rest the case."

108. The full state of affairs had never been properly put to Cabinet as Epa explained:
     

"HH	claim B: that they stole my money as well is separate claim. That never got to Cabinet or anywhere to give him is money back and tell him to bugger off.
Wit	no it never got to Cabinet.
...
HH	second problem: somebody took his money, he wants it before he goes, doesn't get to you as a problem.
Wit	no it never got to Cabinet."

109. She had believed USD$1,000 payment was for the hotel expenses in Malaysia.
     
110. The cost of airfares for Okoro for a journey from Apia to Lagos was to be paid for by Government and a sum of USD$1,000 authorised as expenses.
     
111. Cabinet had acted on the advice of officers of State. But the advice failed to take into account the return of the claimed money.
     
112. The above shows:
     
     • (1) Failure by the Commissioner of Police and his Officers to make proper inquires and reports concerning recompense for the lost property; and
       
     • (2) Compliance by Immigration officials.
       

Lost Property

113. Following his arrest and detention in 2009, Okoro was taken to the Apia police station. No inventory of items taken from him have been found or copies produced as evidence. An Immigration Officer had providentially made photocopies of the passport and financial passbook before delivering the original to Corporal Tise. There was conflicting evidence as between police officers as to whether one or two inventories were made. On one version a list was handwritten in the CID interview room and on another, further entries were made in the Charge Book in the general section. Neither has been located or produced.
     

Investigation by Police

114. Police had been unable to either forward the travel documents to the Court or return money to Okoro. Following the intervention by the Prime Minister an inquiry was undertaken by the former Commissioner of Police. He called for reports from his officers. The supervision of that investigation was allocated to an officer who had been involved in the claims of the lost passport, passbook, money and some incidental items.
     
115. Police Officers Tise Muliaga and Kid Roache accompanied by an Immigration Officer Alvin Onesemo had met Okoro at the airport.
     
116. Corporal Tise cleared the luggage and documentation and escorted Okoro to the police station. He witnessed the interview conducted by Superintendent Seiuli Lene. He became aware of the investigation into the lost money after the event since he was on a mission in the Solomon Islands at the time of the commencement. He subsequently made a report. At trial he gave evidence during the following exchanges, concerning the absence in his report of any mention of the lost property.
     

"Pl	is there any reason why you did not include in your affidavit a statement concerning Okoro's lost properties?
Wit	your hon. the reason being is that that is the only thing the lawyer for the AG told me to finish off my affidavit.
Pl	now if you go to para 5 of your affidavit you say that the questioning of Okoro was done by Inspector Seiuli and you were the witnessing officer, do you see that?
Wit	correct.
Pl	now Inspector Seiuli has told the court that whilst he had started the interview he then got you to complete the interview, what do you say about that?
Wit	your hon. and this hon. court I believe that it was Seiuli that held the interview the whole time; my involvement is I am the one who took him to be charged in the cell room.
Pl	what do you mean you took Okoro to be charged in the cell?
Wit	when the interview was finished I was instructed to take him to be charged.
...
Pl	now before he was taken away from your section, isn't it correct that all the personal items that were on Okoro were taken by the police into custody?
Wit	yes.
Pl	and the evidence that is before the court is that you were the one who recorded down all the personal properties of Okoro, is that correct?
Wit	yes.
Pl	the evidence before the court also is that the properties were recorded on a lose leaf of A4 paper, is that correct?
Wit	yes.
Pl	and evidence also is that after all his properties were recorded down you signed it and Okoro also signed the document, do you accept that?
Wit	I don't remember that.
...
Pl	but that would be standard police practice, wouldn't it? That the police office and the person that owns the items would sign the inventory?
Wit	yes that is the practice but I don't remember bcoz there were many things being signed.
Pl	but would it be more probable if I suggest to you that you did follow procedure that day and then the document was signed by you and Okoro?
Wit	yes I remember following the procedure but I don't remember whether Okoro and I signed.
...
Pl	now after the inventory was prepared was a copy of the inventory made for the exhibits' people?
Wit	a copy was not made but the paper was given to them that had all the recordings down.
Pl	and to whom was the inventory given after you had done your processing?
Wit	it was given to our in charge Galumalemana.
...
Wit	that was the investigating officer he has all the files and he is the one responsible for that.
Pl	and what would have been Superintendent Seiuli Lene, is that right?
Wit	yes.
Pl	do you know whether he did prepare a file for Okoro?
Wit	your hon. that is the IO or the investigating officer's responsibility; I just witnessed but I did not see a file.
Pl	now according to Seiuli who testified yesterday it would have been necessary to make a copy of the inventory for the file, for Okoro's file; now my question to you is: was a copy made for the file?
Wit	your hon. this is the second time you have asked and I am answering no.
...
Pl	yes, so there was no copy for the file as well, is that what you're saying?
Wit	yes for the second time, third time, I think.
...
Pl	...look at the last sentence, see the last sentence of that report...starting from 'ina ua maea le faatalatalanoaga' do you see that?
	...'ona sa faapea ona faatonuina ai au e le alii taitai leoleo o Seiuli e tuu uma risiti ma isi uma mea aoga i totonu o se teutusi ona ave lea e loka i le exhibits room sei vagana ai le ato tupe (wallet) sa e iai pepa mai isi atunuu ua ou le manatuaina lelei ma le uati taulima sa faapea ona taofia i le alii taitai' do you see that part of your report?
	...now was the passport included in the items that you placed inside the envelope?
Wit	yes.
...
Pl	isn't it correct that you were also present at Fagalii airport on the day Okoro came back from American Samoa?
Wit	yes I was present on the day that Okoro arrived.
...
Pl	can you recall again who the officer was that traveled from American Samoa with Okoro?
Wit	your hon. it was Luatimu Samau.
...
Pl	...now do you say that the wallet was kept by Seiuli Lene?
Wit	yes.
Pl	and you also say you did see foreign currencies in the wallet?
Wit	I don't recall and I'm not sure whether there were foreign currencies or receipts that were in the wallet.
Pl	but if you look at your report, see the second sentence on the bottom of the third paragraph where you say wallet, 'sai e iai tupe pepa mai isi atunuu' (wallet which had foreign currencies from other countries) that's what you say there, isn't that correct?
Wit	yes it's mentioned there but as I said before I don't remember or I'm not sure if the monies were monies from other countries.
...
Pl	now when the recording of the properties were done, were all the monies recorded down as well?
Wit	your hon. all the belongings and properties were recorded and it was recorded without any money that's why the money was not recorded bcoz there was no money.
Pl	are you saying there was absolutely no money in the wallet?
Wit	yes confirm your honor.
...
Pl	in your report you said that there were monies in the wallet, you see that?
Wit	yes.
Pl	so what you're saying today is different from what was mentioned in your report, correct?
Wit	yr hon. like I said I don't recall; this is the first time I've seen money like this that's why I'm saying it must be money from different, foreign currencies.
Pl	do you know what happened to that inventory that was prepared by you?
Wit	yr hon. I was told that it was lost.
...
Pl	did you see the report that was prepared by Seiuli Lene concerning the lost passport?
Wit	I have it with me.
...
Pl	yes, then I won't. Tise, there's mention by Seiuli that there was U.S. money, you can't recall that as well?
Wit	yr hon. I had not seen any American dollars."

117. The original report of Corporal Tise clearly refers to the presence of foreign currency in the wallet. The remaining property was placed inside an envelope which was locked inside the Exhibit Room except for wallet, paper money and a wrist watch. The report dated 30 July 2010 states:
     

"All the properties of the Nigerian man including money exchange receipt, passport and other papers that I do not clearly remember. After the interview, I was instructed by Police Inspector Seiuli to put all the receipts and other valuable items inside an envelope and locked them inside the exhibits room except the wallet containing paper money from other country that I do not clearly remember and the wrist watch that was hold by the man in-charge.

After I put all the properties inside a big white envelope then I walked over inside the CID office and asked for the key of the Exhibits Room however, Galumalemana said that he forgot the key at his house but he had sent somebody to pick it up. I was then instructed by Galu to put them all inside an A4 empty box and place it beside lady secretary Rosita's desk waiting for the key to be arriving then to take it and keep inside the room.

...

Since I left for the mission and I thought that the envelope containing all the properties of the Nigerian man had been taken inside the room except the wallet which was with the in-charge Mr. Seiuli Lene Tanielu."

118. His evidence can be contrasted with that of Superintendent Seiuli Lene.
     
119. Superintendent Seiuli Lene provides a different account. He had been the Investigating Officer in the original prosecution of Okoro and gave evidence at trial. He subsequently provided adverse material and opinion to Okoro to the TCU (M1, M2).
     
120. In his affidavit he stated:
     

"5. Later after he was interviewed, he was charged with theft and obtaining monies by false pretence and remanded into custody until the first Mention date.

6. The only other times I came into contact with the Applicant – this was before the criminal hearing – was when he came to see me a few times regarding his passport that had been confiscated upon his arrival in Samoa. However I only found out much later that the passport had been misplaced."

121. He had made a report on 5 August 2009 ("Exhibit D7.2") and included his opinion that 'the accused was a well educated fraudster (and/or) could be rated a high risk individual and poses a great danger to our community." He was entitled to express that opinion whether or not it was accurate. The problem is that in 2010 he was asked to supervise the investigation into allegations concerning him personally and officers under his command. That course was a systemic failure of the system of internal investigation.
     
122. In relation to the possession and loss of the passport he stated in evidence that he had made a further report on the claim for lost money. In cross-examination he stated:
     

"Wit well when I found out the passport was missing so I think that is the reason just to, some comfortable words for Mr Okoro.

...

...I think 2 weeks after one of the counsel from the Attorney General just told me the court order that the passport should be referred to the court, to surrender to the court Registrar.

...I did not confirm yet that the passport was lost it's maybe only misplaced.

...I think that maybe he (Tise) misplaced the box that he put the passport in.

...he (Tise) didn't say the passport could not be found but he only said that where he put the."

123. As to the question of currency and Corporal Tise's report he said:

"Pl	where he says that he was 'instructed by the in charge Seiuli for me to put all of the receipts and other items inside an envelope and take inside the exhibits room to be locked up there except for the wallet which had foreign currencies in it but I cannot remember what those foreign currencies were and the watch, the wrist watch which were held by our in charge' do you see that?
Wit	yes.
Pl	now Tise there is saying he took everything away as you had instructed him except for the wallet and the watch which you kept, do you see that?
Wit	yes.
Pl	so Tise is saying that he didn't take the wallet, the wallet had foreign currencies but he can't remember what currencies they were but you kept it and the watch, now what do you say?
...
Pl	so you understand what Tise is saying; Tise is saying that you kept the wallet, the wallet had foreign currencies and the watch; those were the items that you kept, do you see that?
Wit	I do. That is a wrong explanation and this report is not right.
Pl	you didn't keep the wallet?
Wit	yes.
...
Pl	do you know of any reason why Tise a junior officer a subordinate to you would blame you for keeping the wallet if you didn't keep the wallet?
Wit	perhaps is this is his report of what he remembers; the part of the report that I kept the wallet and there were foreign currencies.
	...yes this report is not correct; the wallet was not given to me.
	...ona o le tulaga mafua ai ona ou te'ena le tulaga lea, o muamua a o le tupe lea foreign, lea taumai o le tupe fafo, e leai se tupe faapea i le taimi na sailiai mea toatino a Okoro ona ua saili.
	[Translator: the reason why I reject this is bcoz 1) of the foreign currencies; there was no money like that when we searched Okoro].
Pl	okay, the procedure, the standard police procedure when you arrest somebody, you bring that person in and you are going to keep him in custody you will then note down all his personal items, correct?
Wit	correct.
Pl	and if there are monies, all those would be recorded as well?
Wit	correct.
HH	sorry, you just said and the second reason gave was bcoz there was no foreign currency; in your report you say Tise told me he had with him Okoro's wallet containing about $300 American money however I did not see it, so you hadn't looked in the wallet? I'll leave it with you counsel.
Pl	there is a system of recording items that are taken from Okoro?
Wit	correct.
Pl	and was that done?
Wit	Tise recorded all of the items.
Pl	and if there are monies, monies would be recorded also?
Wit	yes.
Pl	everything?
Wit	yes."

124. In relation to the inventory he replied in the following exchanges:

"Pl	now that inventory should then stay with Okoro's file; a copy would be placed in Okoro's file, correct?
Wit	yes.
Pl	and another copy would go into the exhibits room with the items?
Wit	yes that is done.
...
Pl	and when there are monies in wallets they are all taken out of the wallet and all put in front of the person who owns the money so that they can all see and count how much money that the police is going to take, right, so that there is no confusion, right?
Wit	yes.
Pl	a wallet is not just put in and recorded as wallet, right, the contents are taken out and identified specifically, okay?
Wit	yes.
Pl	and then when the recording was completed Okoro and Tise signed?
Wit	yes.
Pl	now there was also a female officer by the name of Nora that was also present?
Wit	Aldora, there is no Nora.
Pl	Aldora, there was also that female officer that was present?
Wit	no the female officer was not there at that time.
.	...bcoz the contents or the things that were in the wallet were papers there was no money and then I told them to do photocopies
Pl	are you saying there was no money in the wallet?
Wit	there was no money; I didn't see any money.
Pl	I thought you mentioned in your report that there was USD$300?
Wit	the interview was done first in a big room of the CID.
...
Pl	no, no just answer my question; let's focus on the money and then we'll move quickly.
Wit	okay, that's the time I asked Okoro if there's money in here but Tise replied there's about USD$200 or $300 but I did not see it at that time. After the interview I then told Okoro now were are going to do a body search on him so I took him into the interview room away from the public and that was the first time the wallet was opened and I did not see any money even the U.S. money.
Pl	well if you were told that there was U.S. money and you didn't see any money inside the interview room you would have raised that question, wouldn't you, as the superior officer in there you would have then asked immediately where is the money, you said there was $200 or $300 U.S. where is it, just show it. You would have asked that question, wouldn't you?
Wit	yes I asked and the police officer said he has it.
...
Pl	so how do you know that he's telling you the truth if you haven't seen the money?
Wit	bcoz that time papers were brought and my mind was is going to those papers.
Pl	are you saying that Tise never placed the U.S. money on the table and you never saw it?
Wit	yes.
...
	...the reason why I reject to this regarding the money is bcoz if there was money about $26,000 Chinese Yuan sei manu e fai se suesuega oute toe faatonu se suesuega poo fea e mafua ai le tupe lea.
Pl	are you saying there was no $26,000 Yuan?
Wit	can you ask the question again?
Pl	are you saying there was no $26,000 Yuan?
Wit	there was no money like that.
Pl	then why did you lose the inventory which would have shown that there was that money?
Wit	I already instructed the police officers of what they are supposed to do; those who are responsible know to make an inventory.
Pl	why was the inventory lost bcoz the inventory would have shown the exact items that were taken from Okoro bcoz Okoro says he and Tise signed the inventory which included $26,000 Yuan been written on it and he signed the inventory, saw it with his own eyes.
Wit	there was no inventory and when the items were returned back to him there was no record of that.
...
Pl	was a copy of the inventory made so that there is a copy for the file and a copy of the exhibit room?
Wit	I can't remember a copy being made.
Pl	but in practice a copy should have been made, correct?
Wit	yes.
Pl	so if a copy was made then there should have been the original and the copy in the office, one in the file, and the other in the exhibit room, correct?
Wit	yes.
Pl	and both disappeared?
Wit	as I said I don't know if a copy was made."

125. Superintendent Seiuli Lene did not recall the presence of Superintendent Logoitino at the relevant time. As to the charge book he replied:

"HH	another officer told us that at the station there is a custody property book, is that right or is that wrong?
Wit	he is right bcoz there is another, we call it the charge book but once the person will be to the watch house where the charge book is so all the properties in his possession will be entered within that book called the custody book before the person is put behind bars.
HH	so you say (1) A4 plan paper, you wrote them down and you signed; that's one step, is that right?
Wit	yes.
HH	two steps: somebody should make a copy so it goes into the exhibit room and one into the file, correct?
Wit	yes.
HH	step 3: the charge book is a book, they normally have page numbers so you can't tear the page out –
Wit	yes.
HH	and there in the column is the property that is taken and it has the property.
Wit	yes.
HH	I understand that, and I think he says that was lost as well.
...
Wit	the charge book that I am talking about is normally used by the general policing when people are remanded and charged; when the person is charged all his belongings, all the things he has is recorded into this book. But with Mr Okoro's case all the things that were recorded in Mr Okoro's case was recorded at the CID that means all Mr Okoro's belongings were recorded in the inventory and the exhibits' book at the CID so when Mr Okoro was taken to the watch house to be charged he didn't have any properties or any belongings with him at that time so that is why nothing was recorded at the watch house.
HH	ah, so you have looked in the book?
Wit	I am just mentioning it but I haven't seen the book.
HH	but if it is CID he still goes to the same place to be charged, does he not? He goes to the same desk and the same officer to be charged and his name is put in that book? And you say on this occasion – that is for everyone?
Wit	not everyone.
HH	so where is the charge book for the CID?
Wit	we use the same charge book with the watch house."

126. Superintendent Seiuli Lene, on the other hand in his report dated 12 August 2010, did not recall 'seeing any foreign money...because only Tise who had brought out all the papers from inside the wallet." Superintendent Seiuli Lene's report went on to place responsibility on a junior officer claiming:
     

"I cannot recall seeing any foreign money containing inside Mr Okoro's wallet because only Tise who had brought out all the papers from inside this wallet while we was witnessing with Mr. Okoro and Luatimu Samau.

...

I do recall that on the last week of September 2009 when I questioned Tise concerning the passport and he said that he put all things inside an empty box including the passport and other papers that had yet to be returning to Mr. Okoro and put it on Rosita's table unfortunately, he could not find them on his return. Police Officer Tise told me that he gave the mobile telephone belonging to Mr. Okoro to a lady named Miti, the owner of Mitty's Rental and received $100 from her as needed by Mr. Okoro."

127. The Defence is unable to produce evidence of the amount of foreign currency but in their closing submissions submit that the sheer quantity of 26,000 Yuan could not go unnoticed. Yuan is issued in a number of denominations including 100 Yuan. The total amount claimed of 26,000 Yuan is equivalent to AUS$3,900 a not unusual amount for international travelers.
     
128. The Court finds, as a fact that such sum had been in the Plaintiff's possession and not returned.
     
129. A problem for the Defence is that photocopies of the passport and bank book were retained and presented as exhibits. The passbook itself and any money or wallet were neither found nor produced. As Superintendent Seiuli Lene explained:

"Pl	yes but the passports, the records of the passport they are Okoro's passport, do you accept that? And if you look at A2 which is a photocopy of Okoro's passbook, A2, you recall that that was another item that was also taken from Okoro, was his passbook? Do you accept that?
Wit	yes passbook, the title is on it.
...
Pl	and do you accept that that was another item not returned to Okoro, was that passbook?
Wit	I don't recall that."

130. There is a conflict internal to the Police handling of the matters of the passbook and the claimed missing money not resolved by other police witnesses. It is clear that Police had possession of:
     
     • (1) the passbook;
     • (2) money, of whatever currency;
     • (3) a watch; and
     • (4) the passport.
       

which were not found or returned. It is clear that no record exists of items taken into possession.

Investigation by Police

131. There is no issue but that the passport was lost or stolen whilst in police custody. The action for this loss has been made out and the Plaintiff entitled to remedy. The Defendant has attempted to provide that remedy and the issue becomes peripheral to the central issue of other property.
     
132. Some of the other property, claimed by the Plaintiff has not been returned. The Plaintiff claims that the following was taken not all of which was returned. His recollection is that property recorded was:
     

"1. US$200

2. 26,000 Chinese Wan

3. 2 cell phones

4. Wallet

5. Business Licence

6. Suitcase

7. Watch

8. Receipts

9. Diary

10. 2 pairs of shoes

11. Passport

12. Business ID Cards (2-one for Congo and one for Uganda)

13. Bank Account Passbook"

133. Proper procedure required the appointment of a senior independent officer to investigate an internal irregularity. The then Commissioner of Police had been directed to investigate and report to the Prime Minister on the 'money' claim. It was not done or, if so, in an unacceptable manner.
     
134. It was this failure which led to Cabinet on 20 October 2010 approving a compensation package, based on information or otherwise, provided by the then Commissioner of Police. It was the package which ultimately led to the events of 20 January.
     
135. The loss of the Nokia E363 phone has already been recounted and requires no further consideration. Corporal Tise did not pursue this matter. Okoro agrees that all other items were returned except for 26,000 Yuan, business licence, two identification cards and wallet. The Court accepts that his bank account passbook was taken since a copy of that was made by the Immigration Officer. The passbook held through the Union Branch of Nigeria is numbered Account Number 107 155 000 2185.
     
136. Subsequent telegraphic transfers through ANZ Bank to the Plaintiff while on bail show transfers into an account number 344 7933 and 383 4488 which suggest that the Nigerian passbook had not been returned. That makes it more likely that other money was taken but not returned. The question is not whether foreign currency was taken but how much. The question is not whether the money was returned but whether it was lost or misappropriated.
     
137. The Court accepts that foreign currency was taken by Police. The Defendant now contends there was none, a matter contrary to its own documentation (Taylor v Ellis [1956] VLR 457). As to the amount, the evidential burden ought pass to the Defence to show it to be less than claimed (Gould v Vaggllas [1984] 157 CLR 215 and Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419).
     
138. The Court finds, to the requisite degree that the sum of 26,000 Yuan or its Australian equivalent of $3,900.
     

Conclusions

(1) The Office of the Prime Minister acted properly.
(2) Immigration Officers acted properly up until at least until 13 January 2011.
(3) There was a systemic failure by Departments to liaise on the issues raised by the Prime Minister.
(4) There was personal and systemic failures within the office of the then Commissioner of Police.

Law of Property, Bailment and Detinue

139. The Constitution Article 14 provides:
     

"Rights Regarding Property – (1) No property shall be taken possession of compulsorily and no right over...property shall be acquired...compulsorily except under the law...which...when read with any other law...

(c) Gives to any party to proceedings in the Supreme Court relating to such a claim the same rights of appeal as are accorded generally to parties to civil proceedings..."

140. The exception provided for by sub-Article 2(J) namely;
     

"...relating to the temporary taking of possession of property for the purposes of any examination, investigation or inquiry."

does not apply here. Police are empowered to hold the property of a suspect during custody or as security for bail. But that compulsory possession does not translate into a right of acquisition. The term property is not confined to realty.

141. Okoro was entitled to the return of the property upon discharge from the legal process. That right, irrespective of his own character, is guaranteed by the Constitution.
     
142. If that approach be incorrect, the Commissioner of Police and his Officers remained bailees of the property. Police have a duty of care to persons in their custody, a duty which extends to their property (Vellino v Chief Constable of Greater Manchester [2001] EWCA 1249). That duty extends to cases where a claimant has also committed a criminal act (National Coal Board v England [1954] AC 403). The State is responsible for tortuous acts of Police (Carrington v Attorney General [1972] NZLR 1106).
     
143. The same principles apply to Detinue. A wrongful detention of property may be established by proof that the Plaintiff demanded the return of the goods and that the Defendant failed to do so (Rushworth v Taylor [1842] EngR 977; (1842) 3 QB 699).
     
144. There remains the question of whether Okoro was entitled to refuse to leave without recompense. It would have been difficult for him to maintain an action in Samoa if he was refused entry as a witness. In practical terms his departure could have ended his prospect of remedy. The general principles have been well stated by the UK Court of Appeal in Vellino (supra). In that case the Court considered a range of common law cases including Cross v Kirby (C.A. 18 February 2000); Revill v Newbery [1995] EWCA Civ 10; [1996] QB 567 and Stapely v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663. That approach has been followed in Canada (Hall v Herbert [1993] 2 SCR 159) and Australia (Jackson v Harrison (1978) 138 CLR 438). A court of first instance in New Zealand (Brown v Dunsmuir [1994] 3 NZLR 485; see generally The Law of Torts in New Zealand, Burrows 4 Ed. at 22.7) suggests a formulation of whether 'the plaintiff's illegal conduct is of such moral turpitude as to require recovery to be denied on the grounds of public policy'. Suggested alternatives have been suggested as ones of 'sufficiently anti-social' (Hardy v Motor Insurers Board [1964] 2 QB 745), 'affront to the public conscious' (Thachwell v Barclays Bank plc [1986] 1 All E R 676) or the 'administration of justice (Betts v Sanderson Estate (1989) 53 DLR 4th 675) and could 'offend and shock the public conscious' (Hall v Herbert, supra).
     
145. The power of deportation is not open ended and is subject to criteria which included purpose, competing interests of liberty, duration of detention and the protection of law (Minister of Immigration v Al Masri [2003] FCAFC 70, Plaintiff 157/2002 (supra), Johnson v Eistnager [1950] USSC 60; (1950) 339 US 763, R v Home Secretary, ex parte Khawaja [1984] AC 74) and many European and Asian jurisdictions. There is a useful collation of those cases in Al Masri (supra).
     
146. As the High Court stated in Kioa v West [1985] HCA 81; (1985) 159 CLR 550, Deane J. said at 631:
     

"An alien who is unlawfully within this country is not an outlaw."

147. In this case Okoro resisted deportation, but with reason. He was unlikely to be able to pursue any civil claim, had properly presented his grievances and claims to the appropriate Officers of State and had followed legal and correct procedures. His complaints had not been properly dealt with by the then Commissioner of Police and there had been procedural and systemic breaches. His civil constitutional rights had been ignored. The initial detention might have been lawful, its nature and subsequent length did not keep it so.
     
148. On any of the above tests he was entitled to pursue his cause and remedies through the Court process and was denied the right to do so. Those cause included tort and significantly detinue.
     

Assaults

149. The Plaintiff alleges a series of assault occurring on
     
     • (1) 18 March 2010;
     • (2) 14 January 2011; and
     • (3) 19 – 20 January 2011.
       
150. It is first necessary to consider the Plaintiff's evidence of an event occurring the day following his return from American Samoa and refer to his complaint made to the Samoa Victim Support Group. On that day the employee of Samoa Foreign Exchange, Greg Alalatoa, the original complainant was brought into contact with Okoro, in the presence of Superintendent Seiuli Lene and Corporal Tise. Alalatoa assaulted Okoro without protest or intervention by the Officers. Subsequent complaints made were ignored. Okoro was held in custody until 10 September 2009. Upon release Okoro was again beaten by Alalatoa following the dismissal of the original criminal charges. Again Police did nothing to follow up the complaint.
     
151. The immediacy of the Plaintiff's complaints and details provided show consistency in his account and cannot be said to have been later fabricated to enhance his case. Those events taint the credibility of the Police Officers present or involved and strengthen the conclusion that there was ongoing hostility to the Plaintiff.
     
152. Okoro persisted with his efforts to obtain documentation and recompense for his expenses and lost money. Doubtless he began to be regarded as a nuisance by public officers.
     
153. Okoro was taken into custody on 14 January at his lawyers' office and transferred to the Apia CID. He was led to believe that he would be taken to meet the Commissioner of Police but instead was taken to the CID general room. There he was repeatedly assaulted by Superintendent Matau, knocked to the floor injuring his eye as he fell against a table. The assaults only ceased upon the arrival of Jermaine Stewart ("Stewart"), a friend who had been asked by the Plaintiff's lawyer to go to the police station to ensure that the detainee was treated properly. When he arrived he heard a person crying out, and recognising the voice, went to the CID room.
     
154. The Court accepts his evidence as stated in his affidavit that:
     

"When I arrived, Mr Okoro was sitting on a chair surrounded by Police Officers who were watching another police of heavy set stature and eye glasses punching Mr Okoro repeatedly all over his body. I yelled to them and asked what was happening and if this asked fellow officers to escort me out of the CID Office. I later learnt that the policeman who was abusing Mr Okoro was section chief for CID as I had to get his permission to speak with Mr Okoro about half an hour later."

He later recognised Superintendent Matau in Court.

155. His evidence was not shaken by cross-examination. Stewart was refused permission to see Okoro on the following day.
     
156. Superintendent Matau denied the allegation. His account was simply that the Plaintiff was yelling and out of control and he (Superintendent Matau) simply moved the man to another room. Superintendent Matau is not accepted as a credible witness. His evidence concerning the later investigation of lost property, his professed lack of knowledge of why the Plaintiff was at the police station, his contradictions of Corporal Tise's evidence and his reliance on the right to use 'reasonable force' affect his general credibility. His account was not corroborated by another Officer who had driven Okoro to the police station.
     
157. Okoro was transferred to Tafaigata Prison. He was given no medical examination, forbidden to make phone calls, receive visitors or talk to other prisoners and kept in the custody room. On 19 January, he was returned to the Apia police station and placed in Custody Cell No. 1. At 2:30 a.m. two Police Officers entered the cell and told the Plaintiff he was to be deported that evening. He persisted in his demand for the return of his money. The Court accepts that force was then used by a group of Police Officers and he was beaten by a number of them. He was stripped of his lavalava and forcibly clothed with trousers and handcuffed with his hands behind his back. The Police Officers involved claimed that only 'reasonable force' was used. The Court is satisfied, in the light of later evidence, that excessive force was used. Accepting that the detainee resisted removal there was no need to bind his legs with commercial masking tape or truss him before being forced into the back seat of a 'pick up' truck.
     
158. The general tenor of the Plaintiff's evidence was corroborated by persons in adjourning cells. The Court regards that evidence as generally supportive but exaggerated. It is satisfied that excessive force was used but not that the Plaintiff's mouth was then taped. It is satisfied that it was taped at some stage before the vehicle reached the Faleolo Airport.
     
159. The vehicle was initially parked some little distance apart from the general public area, while Superintendent Logoitino went to speak with Immigration or Foreign Affairs Officers. It was driven to the loading zone where Okoro attempted to attract the attention of airport officials. It is certain that by that stage his mouth had been firmly taped with a commercial masking tape and his breathing impeded.
     
160. What then happened is as recounted by Dalton. Okoro kept demanding the return of his money before departure. Superintendent Logoitino restored to subterfuge maintaining that he had USD$5,000 in his possession which would be provided during or after the flight. Superintendent Logoitino agreed that he had only USD$1,000 as provided for by Cabinet but denied deception. The Plaintiff asked for the money (in an envelope) to be shown and counted. Superintendent Logoitino conceded that it was not counted.
     
161. The failure of Police to earlier account to Cabinet or recommend compensation for the claimed amount was the primary cause of the events which occurred at the airport. Vaosa Epa, the Chief Executive Officer of Prime Minister and Cabinet confirmed that Cabinet had approved the amount of $1,000 as payment 'of hotel expenses and so forth when he gets to Malaysia' [Transcript of 5 July, page 63]. It did not represent replacement of 'lost money.'
     
162. It is now necessary to resolve the issue of competing versions by examining the testimony of Superintendent Logoitino and Constable Ioane Tavai who were present at the airport. It is convenient to deal with the entirety of his evidence. On 14 January:

"Wit	we went straight and I told Herbert to take him to CID office while I went up to inform the Commissioner of Police.
Def	so you weren't present at the CID office?
Wit	that is correct.
...
(At the airport)
Wit	yes we stopped outside the gate bcoz when we arrived there the gate was locked.
HH	how long before the gate is opened for you to go in to the tarmac area itself?
Wit	roughly about 45 minutes...
	...there were 3 of us who took Mr Okoro to the airport. The other officers that were present in uniform were the ones on duty at the airport at Faleolo and they came over to assist us when they heard someone shouting at the other end of the airport.
	...Okoro was in the car and he was making those threats when we were present at the time and the manger of the Air Pacific was inside the office, inside his office.
	...we took off the handcuffs and the tape when we arrived in Apia police station.
	...that is in the affidavit.
Pl	says nothing about you taking off the handcuffs, correct?
Wit	that is correct.
Pl	it also says nothing about the tapes being removed, correct?
Wit	that is correct.
...
Pl	part of those matters that Okoro was alleging was that he had been tied up and left in the cell after you returned from the airport and yet you didn't reply to it, do you accept that?
Wit	no I don't agree bcoz that was not the case.
Pl	I'm not saying whether you agree with what Okoro is saying but what I am saying is that was Okoro was saying and that was what you were supposed to be replying to, isn't that so?
Wit	that is correct.
Pl	but you didn't.
Wit	that is correct.
...
Pl	now imagine you being handcuffed to the back like this and you are made to lie on the rear seat of the vehicle, facing down and then somebody sits on your back that would be very painful, wouldn't you accept? – you're handcuffed, you're lying faced down and then somebody sits on your back.
Wit	there was no one sitting on Okoro's back.
...
Pl	alright, now the tape that you used, what sort of tape was it?
Wit	it was a clear cellotape.
...
Pl	in that paragraph you are saying the manager of the Air Pacific came and talked to me then we went and talked to Okoro, so the 'we' that is referred there is you and the manager.
Wit	that is correct.
Pl	so you and the manager then went and talked to Okoro and Okoro repeated his threats about bombing the plane.
Wit	that is correct.
Pl	so according to your affidavit the manager was present when Okoro said he would bomb the plane.
Wit	probably the manager did not hear...
...
Pl	but just a while ago when you were asked about and told about the manager's testimony you told the court that the manager wasn't present when Okoro said those threats...you accept that there's a difference?
Wit	that is correct.
...
Pl	can you have a look at that press release please, exhibit B? Do you see what it says at the top there next to the photo? 'A Nigerian over-stayer who was supposed to be deported from Samoan on Wednesday night is on the run. Okoro Williams Nnamdi pleaded guilty to charges of theft and false pretences in 2009' do you see that?
Wit	that is correct.
...
Pl	...you were not pleased with Okoro's demands, correct?
Wit	that's correct.
Pl	and bcoz Okoro was refusing to put on his trousers, he was refusing to cooperate bcoz he was demanding his money; you saw that as an interference to your objective, do you agree?
Wit	that is correct.
Pl	and you were also running against time bcoz you had to be at the airport to make sure you don't miss the flight, right?
Wit	that is correct.
...
Pl	and when you spoke to him Okoro still insisted that he wanted his money, right? – and then he would go, correct?
Wit	that is correct.
...
	...I have no idea of what Okoro's money was I got; I only had USD$1,000 with me, that's the only money I had.
...
Pl	but would you accept, Superintendent, that if the police did in fact take Okoro's money and they didn't return it to Okoro, Okoro has the right to demand the return of that money, don't you agree?
Wit	I cannot comment bcoz I was not aware of it.
	...he was asking about his claim and I told him I was not aware of any claim that he has made.
.	...I can tell that he wasn't happy; he said that wasn't the money he claimed for
	...since he was refusing to cooperate and I told him that we were going to leave that night and I had no other options but to use reasonable force.
	...after putting on his trousers and handcuffs, he was still kicking...
	...we only taped the mouth when we arrived at the airport.
...
Pl	are they some of the restraining means that you were taught as a police officer that police officers can do? – taping people's mouths and taping their ankles, is that what you were taught as a police officer?
Wit	I believe that was reasonable force.
...
Pl	and in para 6 of his affidavit Superintendent, Hele says, towards the bottom of that paragraph, 'I was told by Mr Logoitino Filipo, police inspector that they were searching for Okoro but they could not locate him. Okoro did not travel as planned as he did not turn up at the airport.' Is it correct what Hele is saying there that you told him that you couldn't locate Okoro?
...
Wit	...I don't know whether there was any money or not.
	...the inventory was given straight to the prison bcoz when we arrested Okoro...
...
HH	I have a question I wish to ask first. You say that step 1: you send the boy, the 2 constables in to get him ready.
Wit	that is correct yr hon.
HH	step 2: they come and tell you he is not cooperating.
Wit	that is correct yr hon.
	...his hands were not in the shirt but we just put the shirt on his back.
	...it was only when we arrived there that he kicked one of the officers and it was missed in the back seat; the officer that was sitting with him in the back seat he was kicking him but he missed and went straight to the window and that's when he fall down on the floor and the officer tried to restrain him there on the chair, the back seat.
...
Pl	he told the court that he came there the second time and when he came he saw one of your officers sitting on the back of Okoro, Okoro was still lying on the back seat facing down, there was another officer sitting on his back. Can you tell the court who that officer was that was sitting on the back?
Wit	well, like I said, Ioane Tavai was the only constable that was sitting with him at the back."

163. There are other matters which affect the credibility of the versions of the airport events as given by Police Officers. Senior Sergeant Reupena Faailo ("Senior Sergeant Reupena") said that on 'the whole drive back he (the detainee) was very calm' whilst Constable Ioane stated 'Mr. Okoro slept from the airport back to the station. Before that he said thank you to us and seemed calm and content.' Those accounts are inconsistent with the tension and hostility at the airport.
     
164. Hele Matatia ("Matatia"), the Foreign Affairs Officer claimed that the pilot told him that Okoro was screaming remarks to bomb the plane and to kill everyone on the plane. Police say the threats were made in the absence of any outsider. The Court does not accept either version.
     
165. A further matter is the denial by Constable Ioane of the evidence of Dalton that someone was sitting on the detainee in the exchanges:

"Pl	according to the manager of the Air Pacific, he's already given evidence in court, he said he saw one of you sitting on the back of Okoro whilst he was lying on the seat facing down, so I put it to you that was you, isn't that so?
Wit	I don't know about that; I wasn't sitting on top of him, I was sitting next to him so maybe he saw a ghost.
...
Wit	that's the thing that I was trying to say that he was not lying on the seat he was sitting on the seat.
HH	so he was never lying on the seat with his head one side and his legs the other, on his stomach?
Wit	never yr hon

166. The remaining concerns the subterfuge, Superintendent Logoitino claimed to have had USD$1,000 and did not misrepresent the amount. Senior Sergeant Reupena gave an account consistent with the Plaintiff when he said:

"Pl	now just going back to when Okoro was talking with the captain and when he was mentioning his money, is it correct that when Okoro was talking about his money Logoitino held up an envelope and showed some U.S. dollar bills and said to Okoro this is your money, I've got your money with me?
Wit	yes.
Pl	and he told Okoro that I've got USD$5,000 for you?
Wit	correct.
...
HH	said he had USD$5,000? The officer said USD$1,000 he had and I know that.
...
Pl	am I correct that when Logoitino said, I've got here your $5,000 Okoro asked him to count the money so that he and the captain can verify the amount?
Wit	I don't remember."

167. The Plaintiff was returned to the Apia police station. He claims that he remained bound and handcuffed for some 15 hours. His account is corroborated by other persons in custody. The Plaintiff has not established that the assault was continued and prolonged other than the question of the removal of the handcuffs.
     
168. The prisoners who saw Okoro on 20 January observed injury. The Court is not prepared to conclude that he had remained handcuffed until mid-morning. It does accept there had been some delay in their removal after the return to the police station while the keys were located. The evidence raises suspicion but the Court is required to be positively satisfied of the event. It does accept that the witnesses observed the result of general ill treatment. It finds that the Plaintiff was returned to the cell still bound and handcuffed. It is not satisfied that he remained in that state for some 15 hours.
     

Unlawful Detention

169. The Plaintiff, in his Amended Statement of Claim, alleges wrongful detention on:
     
     • (1) 20 December 2010;
     • (2) 14 January 2011; and
     • (3) 20 – 21 January until 6 June 2011.
       
170. On 20 December the Plaintiff accompanied Inspector Luatimu to the police station and remained or was detained there for some 2 hours. Whether he went there voluntarily or through detention is irrelevant. He does not complain of ill treatment during that period and was released with his friend Jermaine Stewart.
     
171. Okoro was subject to a valid Deportation Order which included a power of detention. The cause of action is not made out.
     
172. Following the failure of the 13 January flight, irrespective of cause or lack of notice, he remained subject to a valid order permitting detention. Any ill treatment during that period of detention ought be dealt with under the claims of ill treatment or assault. The cause of action is not made out.
     
173. Continued detention is more problematic. Following the events of 20 January he was returned to custody. Any ill treatment during the evening or on his return to Apia remains matters of assault and 'inhumane' treatment.
     
174. The question of continued detention through inaction beyond 8 weeks raises the issue of false imprisonment. Milford, whose evidence is accepted, states that he again raised the transit arrangements with PIDC in a February meeting in Kiribati. In March he attended a meeting at the 4th Ministerial Meeting of the Bali Process in Indonesia and sought the assistance of Mark Gretchell ("Gretchell"), the Regional Representative of IOM and sought further assistance. He wrote to Gretchell on 31 March, forwarding a photocopy of the passport and seeking assistance in its replacement. There is no evidence as to what subsequently occurred.
     
175. Irrespective of Milford's efforts nothing was done to ameliorate
     Okoro's situation who remained in detention, until released by this Court on 6 June. Hele Matatia, a Foreign Affairs Officer told the Court that since detention his Department has had no power to obtain his release. The Court does not accept that explanation. Matatia was aware of the 'money question' but claimed it was not the responsibility of his Department to resolve the problem. On his position Okoro could remain indefinitely.
     
176. The Plaintiff was a detainee not a prisoner. In fact his treatment in custody was worse than that of a person under punishment.
     
177. Execution of the detention order, lawfully issued, does not provide immunity where it is outside the purpose for which it was issued (Baigent's Case [1994] 3 NZLR 667) [Tort, page 104 – 5]. It was open for officers to bring the detainee back to Court (Whihair v Attorney General [1996] 2 NZLR 45). Significantly no attempt was made to address the claims made by Okoro's lawyers in January. It was reasonable to take further steps to resolve the 'property question' and either permit conditional release or prompt redress or response to the claim. In R v Governor of Brockhill Prison, ex. p Evans (No. 2) [2000] UKHL 48; [2001] 2 AC 19, the House of Lords held the tort to be one of strict liability.
     
178. The Constitution Article 6 provides:
     

"...no person shall be deprived of personal liberty except in accordance with law."

179. An authority may unlawfully abdicate its statutory function by failing to act or purposeful inaction (Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1; (1968) AC 997 and R v Secretary of State for the Home Department [1995] UKHL 3; [1995] 2 AC 513). An election not to exercise a discretion or undue delay may amount to a failure to act may constitute a basis for remedy (Vea v Minister of Immigration HCNZ, unreported 1 October 1992, M132/90) and relevantly a delay in assessing compensation (King v ACC [1994] NZAR 159).
     
180. Here failure to renew an attempt for transfer, provide appropriate detention facilities or permit conditional release or assess a pending claim for redress resulted in the further detention of a foreign national, initially unable to leave without the aid of Government. That prolonged failure transformed the nature of the detention into an unlawful deprivation of liberty. The cost to Government, as claimed by the detainee for the 'lost property' was slightly in excess of AUS$3,900.
     
181. If the above be incorrect there remains the alternative remedy for inhuman or degrading treatment protected by the Constitution Article 7.
     
182. The evidence is that for most of the time Okoro was detained in barracks unable to exercise outside those confines. He was provided with scant provisions and amenities because of the policy that remandees be provided for by their families. He was given minimal food and the Court accepts that some of his health needs were not met by prison authorities. Some examples will suffice. Medical notes ("Exhibit P3") show a need for ongoing treatment which was not followed up or supplied. He was not taken to hospital until 3 March 2011, and not returned for follow-up treatment until 7 June shortly before the bail proceedings.
     
183. The Court accepts the evidence of Avila Oldehaver [Tab 2, page 11] that whilst in prison Okoro was unable to grow his own food and had no one to bring it for him. The standard food issued to the detainee was:
     
     • - Suaalaisa, often without rice for breakfast;
     • - One piece of breadfruit and a small piece of chicken for lunch; and
     • - No dinner.
       
184. No sleeping mat was provided.
     
185. The eruption of 'boils' was not referred for medical attention until 12 March and he was not returned as requested by medical staff. There was no proper medical examination until 7 June following his release from prison.
     
186. The prison inventory, properly kept, contained no references to items of money, wallet or passbook.
     
187. The statements made by the Prime Minister that:
     

"...this kind of behavior is disgusting and we cannot tolerate it in the Police Force...That is a very unchristian attitude."

and

"I am copying Mr Okoro this letter so that he knows the Government is not as irresponsible as its Police Officers and at least give him some hope that at last, he can go home."

were accurate, prescient and betrayed.

188. The obligations of the State to a prisoners or detainee have been recognised by International Law (Vuolanne v Finland EHRC 9 April 1989, Communication No. 265/1987) [Tab G]. The Samoan Constitution accords with the International Covenant of Civil Rights Article 16.
     
189. As Gleeson CJ stated in Plaintiff S157/2002 (supra) at 12:
     

"Secondly, courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. AS Lord Hoffman recently pointed out in the United Kingdom, for Parliament squarely to confront such an issue may involved a political cost, but in the absence of express language or necessary implication, even the most general words are taken to be 'subject to the basic rights of the individual.'"

190. The Plaintiff is entitled on either of the above statements of principle to remedy.
     

Post January Publicity and Detention

191. On 14 February 2011, The Observer printed an account of an interview with a Police spokesperson Le'aupepe Fatu Pula and attributed to his statements made in connection with Okoro's detention conceding. The experienced journalist reporter who wrote the story gave evidence at trial confirming the interview and denied that it was 'off the record', and confirmed the accuracy of his notes.
     
192. Le'aupepe Fatu Pula is recorded as saying that Okoro was in prison '...because he is an over-stayer and he's in custody as a prohibited immigrant.' He denied that Okoro had been beaten and went without food and basic amenities because he would not agree to police demands. The evidence was that Okoro was treated as a remand prisoner and responsible, through family, to receive additional food. Okoro was detained through immigration law not criminal conduct. He was confined without proper access outside his barracks. He had been kept in that form of confinement until this Court granted him bail on 6 June 2011. No efforts were taken during that period to deal with the 'money issue' or make further efforts for extradition.
     
193. The Constitution Article 7 relevantly provides:
     

"No person shall be subjected to...inhuman or degrading treatment or punishment."

194. That basic right is afforded to citizens and non-citizens alike. Although the initial detention was lawful, the continued indifference or failure to further investigate the primary complaint or fail to repeat extradition rendered the continued detention a breach of a right to proper treatment. That matter will be regarded by the Court as a factor in any assessment of aggravated damages. Okoro could not leave the country and was left bereft of resources.
     

Publicity of the Department of Immigration

195. The same journalist interviewed Milford the head of Immigration who had issued two letters to Police to apprehend, detain and deport Okoro. He had acted lawfully, although as recounted above, not entitled to leave the matter in abeyance. Milford conceded the substance of the remarks reported in The Observer but denied the detail. The journalist in his evidence confirmed the accuracy of his notes of the quotations. The relevant quotations are recorded as:
     

"The good ones and law abiding citizens are good to stay. But people who are a danger to the country or are here to exploit and mislead our people, that's when we at Immigration must act very quickly and aggressively to put these people on the fastest transport and chase them out of our country. Mr Okoro is one of these people who are professionals at misleading people. We have labelled him as an 'undesirable migrant' and we need to have him out of our country as quickly as we can."

Added Togatalima, "Just his being here is creating expenses which are borne by our country and business people associated with this person who is in Samoa illegally. I know how these people operate and I can tell you he will be trying his best not to leave Samoa."

196. In response to further questions he is recorded as saying:
     

"The problem is he [Mr Okoro] does not want to leave Samoa but I understand there are already plans underway to put him back on the plane and send him back where he's from."

197. In response to the claim of the lost passport Le'aupepe Fatu Pula said:
     

"He already has his passport."

198. Milford repeated the Police version of events in claiming:
     

"He started screaming and shouted he was going to blow up the plane. His actions got out of hand and the pilot said they could not risk taking Mr Okoro on the plane for the sake of the other passengers."

and concluded:

"I'm used to dealing with people doing scams like the Nigerian advance fee fraud. I know what language they speak, how their mind works and they are very professional and good at what they do. And Mr Okoro certainly talks that language."

199. The significance of his statements is that he:
     
     • (1) Had promised further action;
     • (2) Had accepted the police version; and
     • (3) Repeated the 'scam' reason and failed to address a central concern about the return of the money.
       
200. Milford's error was a product of systemic rather than personal failure. His Department had acted as best it was able, apart from continued indifference, but had not insisted on resolution of the 'police problem'. His claim that:
     

"And his staying here in Samoa incurring all these extra costs promotes his case and it works because he's very good at it."

was erroneous. The restitution claimed by the Plaintiff was, in current exchange rates AUS$3,924, far less than the costs of transportation. Resolution of the problem, including the costs of detention, have incurred additional costs to government greater than earlier and proper management and intervention.

Conclusions

201. The Court concludes that:
     
     • (1) The Plaintiff was unlawfully assaulted on 14, 20 and 21 January 2011;
       
     • (2) The Plaintiff was denied restitution of 'lost property' held by Police;
       
     • (3) The Plaintiff was deprived of his passport, bank book which prevented his departure from Samoa. The then Commissioner of Police failed in his duty of care to properly investigate and resolve the complaint;
       
     • (4) The Prime Minister and his officers acted properly in their response to the problems raised by the detention of the Plaintiff;
       
     • (5) The Deportation and Detention Orders were validly made;
       
     • (6) The detention of the Plaintiff beyond 1 April 2011 was either unlawful or constituted an unreasonable exercise of discretion;
       
     • (7) The Plaintiff was treated in an inhumane manner between 20 – 21 January 2011;
       
     • (8) Prison Officers failed in their duty of care to a detainee under the provisions of the Immigration Act 2004 during the period 21 January and 6 June 2011;
       
     • (9) There were systemic errors in the resolution of the issues, and coordination between Departments;
       
     • (10) The Plaintiff is entitled to remedy despite his own conduct; and
       
     • (11) A foreign national, subject to deportation retains rights afforded by the Constitution of Samoa.
       

Damages and Remedies

202. The Plaintiff has sought orders of restitution and damages which can be summarised as:
     
     • (1) Costs and expenses between the return from American Samoa to the conclusion of the trial;
       
     • (2) Costs and expenses between the conclusion of the trial and detention in January 2011;
       
     • (3) Costs and accommodation expenses from release on 6 June and trial;
       
     • (4) Damages for assault on 14 January;
       
     • (5) Damages for assault on 20 – 21 January;
       
     • (6) Damages for false imprisonment or inhuman treatment between April and June 2010;
       
     • (7) Costs of travel and replacement of passport;
       
     • (8) Restitution of lost or misappropriated property; and
       
     • (9) Aggravated and/or punitive damages.
       
203. Yet damages ought be limited. The Plaintiff was in part an author of his own misfortune.
     

Remedies

204. The Act Section 39 states:
     

"Jurisdiction of Courts – Despite any other law and subject only to the jurisdiction conferred on the Court of Appeal and the Supreme Court under Articles 4, 80 and 81 of the Constitution, the Court of Appeal and the Supreme Court and the District Court shall have only such original, appellate and revisional jurisdiction in relation to and concerning this Act as provided explicitly by this Act."

205. The section permits the Court power to exercise some suppression of the performance of its remedies and order.
     
206. There remains the remedy of properly removing the Plaintiff from Samoa. He is currently on bail. It is preferable that the whole of his claim be settled and he leaves voluntarily. It is not possible for this Court to ensure this solution. It will be necessary for Government to revisit the questions of transit and passport replacement. The Court will give leave to the parties to seek ancillary or consequential orders, and, if necessary supervise the performance of those orders.
     
207. It is difficult to state general principles or comparative awards in a case of this complexity. The Court has considered cases of assault from equivalent jurisdictions (Harrison v Holloway (No. 2) [1984 VUCA and Demba Kalo v Akaya Fiji [2007] N 3213), false imprisonment (Edwards v Pohiva [2003] TOCA 8, Willis v Attorney General [1989] 3 NZLR 574), loss of income (Prakash v Attorney General of Fiji HBC 237 of 2011) and exemplary and aggravated damages (Singh v Attorney General of Fiji 0371 of 1993, unreported 4 September 2007, Attorney General v Nania [1994] 3 NZLR 106).
     
208. It will adopt a medium living standard for assessment of expenses, determine exemplary damages in accordance with Samoan economic standards and take into account the principles of compensation for a wrong doer.
     
209. Assessment is made in accordance with the hearings summarised above.
     
     • (1) Initial Expense.

No allowance is made. Okoro returned to Samoa to face criminal charges. He spent time both in custody and on bail. The charges were not malicious or capricious. He should be dealt with in the same manner as any other person charged with criminal conduct.

(2) Period between 18 March 2010 and 14 January 2011.

During that period Okoro was unable to leave Samoa. He was assisted by others but that remains his responsibility. The Court assesses as a reasonable weekly rate for rent and living expenses the sum of $250 per week, calculated at 30 weeks namely $7,500.

(3) Period between 6 June 2011 and judgment.

The same rate will be allowed; 12 weeks at $250 = $3,000.

(4) Damages for assault on 14 January = $6,000.

(5) Damages for assault and inhuman treatment, 20 – 21 January = $15,000.

(6) False imprisonment and inhuman treatment, January to June 2011 = $12,000. The Court accepts that it was reasonable to hold him while alternative avenues were explored. Damages will be assessed as between 20 March and 6 June 2011.

(7) Costs of travel and replacement of passport.

To be determined within the standards as provided for by Cabinet in 2010 and 2011 including an economy flight Apia – Lagos.

(8) Restitution of lost or misappropriated property = AUS$3,924 (SAT$9,548)

(9) Aggravated and Punitive Damages = $50,000.

Leaving aside Order (7), the sum of the damages is SAT$103,048.

ORDERS

(1) Judgment be entered for the Plaintiff in the sum of $103,048.
(2) Costs reserved.
(3) Both parties have liberty to apply generally.
(4) His bail continues until Wednesday 5 October 2011 at 10 a.m.

_____________________
JUSTICE SLICER