Cooper v Augier et Al

• Jurisdiction: St Lucia
• Judge: Gordon, J.A.,Cecil Lewis, J.A.
• Judgment Date: 28 April 1967
• Neutral Citation: LC 1967 CA 2
• Docket Number: Civil Appeal No. 2 of 1965
• Court: Court of Appeal (Saint Lucia)
• Date: 28 April 1967

Court of Appeal

Lewis, C.J.; Gordon, J.A.; Cecil Lewis, J.A.

Civil Appeal No. 2 of 1965

Cooper

and

Augier et al

Appearances:

K.A.H. Foster for the appellant

Steven Brown - Legal Assistant for the Crown

Tort - Malicious imprisonment and unlawful arrest

Gordon, J.A.

1 This is an appeal from a judgment of Bishop, J. sitting in the Supreme Court of the Windward Islands and Leeward Islands (Saint Lucia) in which he entered judgment for the defendants/respondents in an action for $250,000 damages for unlawful arrest and malicious imprisonment which the plaintiff/appellant brought against them.

2 The facts which gave rise to this appeal arose out of a controversy between the appellant, Robin Cooper, an Insurance Agent and one Stephen Biscette, a mechanic, in respect of a room which formed part of a property known as No. 48 St. Louis Street, Castries, and which was owned by an old lady, Justina Prospere.

3 In this particular room Justina Prospere lived, and no sooner had she died on 31st December, 1962, these two men each claiming relationship to her, were at loggerheads over her property.

4 On the 1st of January 1963, and before the burial of Justina Prospere, Biscette locked the room in question thereby excluding the appellant who with the permission of the deceased had been living in two rooms adjoining hers. Be had lived there for a considerable time and he claimed to have been looking after her and her property. On 15th January, 1963, a dispute between the appellant and Biscette developed into a quarrel. The appellant instructed a carpenter John Alphonse to remove a lock which Biscette had placed on the front door of the room which the deceased had occupied. Biscette's resistance of this effort on the part of the appellant, resulted first in strong words and then a struggle between the two men, as a result a crowd gathered on the nearby street from where the quarrelling parties could be seen, and in due course the five respondents three of whom were Regular Policemen and two Special Reserve Policemen arrived on the scene. In the presence of the Police, and after some attempt by them to settle the difference, the appellant tried personally to break the lock on the door and was prevented from doing so by Biscette; a further struggle ensued, and as a result Police Constable Augier arrested both men. They were taken to the Police Station - the appellant in a police jeep and Biscette in a car - At the Station they were charged with disorderly behaviour and released on bail. On the 10th May, 1965, the two men appeared before the magistrate on charges of disorderly behaviour when the cases against them were dismissed. The appellant, as a consequence of these events, brought this action against the respondents for $250,000 damages for unlawful arrest and malicious imprisonment. He has appealed against the Order of the trial judge made on the 1st October 1965, dismissing his claim with costs.

5 The grounds of appeal which were argued before this Court were:

• (A) The learned judge erred

  • (i) by his failure to consider and/or direct his mind to or make a finding as to who was in possession of the premises and/or the room in the house situate at No. 48 St. Louis Street for the purpose of applying Sections 50, 51, 52 and 56(2) of the Criminal Code to his finding;

  • (ii) in wrongfully (a) upholding the objection by the Honourable Attorney General that ownership and possession were irrelevant and had no relevance in a case of False Arrest; (b) disallowing counsel to cross-examine and to examine fully the witnesses, Biscette and Wentworth Skeete so as to elicit whether or not Biscette, at the material time, was in possession of the said room.

• (B) The Criminal Code made specific provisions for the powers of arrest by (a) Policeman acting without warrant: Section 680: (b) Private person acting without warrant only where an offender was engaged in committing an affray, or is found committing any indictable offence if the Private person has reasonable grounds to believe that the offender may escape punishment, or may complete the Commission of the offence, if he is not so apprehended.

• (C) The learned judge erred by accepting and establishing as a general principle of Law “that committing an offence” includes “apparently committing an offence”

• (D) The learned judge erred in dismissing the case against Allan Brown, who did not appear to answer the plaintiff's case, as the said defendant was not put to proof in answer to the plaintiff's case.

• (E) Finally, the judgment of the learned trial judge is unreasonable and cannot be supported having regard to the evidence.

6 It was urged by counsel for the appellant that by limiting his cross-examination of certain witnesses the trial judge precluded him from establishing the appellant's claim of ownership of the property and thereby prevented him from being able to apply all defences as provided by Sections 50, 51, 52 and 56(2) of the Criminal Code.

7 The evidence in the case clearly indicated that regardless of the respective claims of these two persons to the property that the appellant had never owned the property nor had he ever been in possession of the disputed room, indeed, during the period of 1st January to 15th January, 1963 — the date of the incident out of which this litigation arose — the appellant was not in actual or physical possession of the room in question. Justina Prospere had been in possession until her death on 31st December, 1962 and almost immediately after her death the room had been closed by Biscette. Since the appellant had never been in possession and could put forward no claims of ownership the sections which he has called in aid, viz: Sections 50 et seq. of the Criminal Code, are of no avail in this case. Indeed, the question in this appeal is not whether, if the appellant was charged with fighting, whether a defence under this section would prevail but whether on the facts found by the learned judge the Police could have arrested himself or Biscette.

8 The appellant gave evidence on the question of possession and it has not been shown by his counsel in this appeal that his cross-examination at the trial of either of these parties would have elicited any further evidence or put his case on any higher basis than that put to the Court by the appellant himself. This ground of appeal must accordingly fail.

9 It was urged on the Court that by virtue of Section 46 of Ordinance No. 18 of 1960 (the Police Ordinance, 1960) that the respondents Roberts and Anthony though members of the Special Reserve Police were not clothed with the same powers of arrest as are given to the members of the Police Force by Section 680 of the...