Elihu Rhymer Appellant v Commissioner of Police Arthur James Jeremiah Clarke Respondents

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: Satrohan Singh,Justice of Appeal,Albert Redhead,Albert Matthew
• Judgment Date: 25 January 1999
• Neutral Citation: VG 1999 CA 2,[1999] ECSC J0125-2
• Docket Number: CIVL APPEAL NO. 13 OF 1997
• Date: 25 January 1999

[1999] ECSC J0125-2

IN THE COURT OF APPEAL

(CIVIL)

Before:

The Honourable Mr. Satrohan Singh Justice of Appeal

The Honourable Mr. Albert Redhead Justice of Appeal

The Honourable Mr. Albert Matthew Justice of Appeal (Ag.)

CIVL APPEAL NO. 13 OF 1997

Between:

Elihu Rhymer

Appellant

and

Commissioner of Police

Arthur James

Jeremiah Clarke

Respondents

Appearances:

Mr. Joseph S. Archibald, Q.C., Mr. Oscar Ramjeet and

Mr. Ian Sandy with him for the appeallant

Mr. Stuart Best, Miss Carla Card with him for the respondents

1 SATHROHAN SINGH JA

2 In the British Virgin Islands, S 22 (1 ) (a ) of the Police Act Cap 165 Vests in any member of the police force, the power to arrest any person who commits in his presence an offence punishable either upon indictment or upon summary conviction. In accordance with S 17 (1 ) of the Small Charges Act Cap 72, Disorderly Conduct is a criminal offence punishable on summary conviction. However, to constitute the offence, the disorderly conduct must happen in a public place. Disorderly conduct under S 17 (1 ) therefore is an arrestable offence under S22 (1 ) if committed in the presence of a member of the police force.

3 On June 27, 1991, whilst on his private property, the respondents arrested the appellant for the offence of disorderly conduct under S 17 (1 ) of Cap 172. Immediately I say that because the alleged disorderly conduct happened on private property and not in a public place, I must conclude that the arrest was wrongful. Following upon this wrongful arrest the appellant was detained at the police station for some three hours. As night follows the day, this detention constituted false imprisonment. The appellant was then charged for unlawfully obstructing the passage of a police vehicle, threatening language, resisting a police officer in the execution of his duty, failure to comply with a plice request to move his vehicle and conducting himself in a disorderly manner. Despite these numerous charges, the evidence on behalf of the respondents was that he was arrested for disorderly conduct. None of these charges wre pursued before the Magistrate, they were all either struck out or dismissed for want of prosecution.

4 Following upon all of this, the appellant sued the respondents for aggravated and exemplary damages for the trespass to land, assault, battery, false arrest, false imprisonment and malicious prosection committed against him by the second and third respondent under the direction of the first respondent. Georges J heard the matter and dismissed the suit. In doing so he expressed the 'firm view that it was the plaintiff's own obstreperous and obstructive behaviour which prompted the police to arrest him." The Judge's judgement reveals that at no stage did he address the issue that the arrest would have been wrongful because it was done for an alleged offence which was non-existent in the law, i.e. disorderly conduct on private property. He also ordered the appellant to pay the costs of the suit to the respondents.

5 The appellant appeals from that judgment and the nub of the appeals was the fact that the arrest was wrongful. Because of the statutory provisions set out at the commencement of this judgment, I have no hesitation in concluding that the arrest was wrongful and that the appellant should succeed in this appeal on the torts of false arrest and false imprisonment. As I understood the approach of Queen's Counsel Archibald to the appeal, these were the two matters that he intended seriously to pursue. We heard arguments whether or not the respondents were trespassing when they arrested the appellant. Because of this approach by Mr. Archibald I do not consider that issue relevant for the purposes of this appeal.

6 Learned Counsel quite properly did not pursue the tort of malicious prosecution. Having so concluded, I will now address the issue of damages.

7 It is accepted that the appellant is a respected individual in this jurisdiction and that he occupied lofty positions both in the public and the private sectors of the BVI community. It cannot be disputed that he was severely humiliated, ridiculed and treated with contempted not only because of the fact of his arrest and detention but also because of the method of his arrest where according to one witness the police "dumped him like a can or sardines in the back of the van, just chucked him in like a can of sardines" and another witness who said they "scuffled him and pitched him in the van like a bag of flour." Thee was also wide publicity of his arrest and the charges laid against him. When the circumstances are looked at both subjectively and objectively, I am of the firm conviction that the appellant was entitled to aggravated damages. My reason for so concluding stems from the fact that because of the obvious respectable status of the appellant in the community, because of the fact that he was well known and a settled citizen in the country and because of the trivial nature of the offence of which he was arrested, had the police acted properly and in a decent manner, the proper approach would have been to leave his property and have him summoned to Court for the offence. Taking his hint from the Court, Mr Archibald did not pursue the claim for exemplary damages. I considered this a correct approach despite the rough and humiliating treatment meted out to the appellant by the respondent. I say this because the evidence disclosed that at one time, before January 11, 1996 when the High Court decided that the land where this incident occurred was the private property of the appellant, it was in dispute whether or not it was the appellant's property or public property. It was therefore reasonable to conclude that the respondents, at the time of the incident may have regarded it as public property. For these reasons, it was felt that the evidence could not have supported a claim for exemplary damages and might even mitigate the damages for the wrongful arrest.

8 Given these circumstances, on the issue of quantum therefore, for the wrongful...