Angelina O'Reilly v George W. Page (1 of 1914) [1914] SLCA 1 (30 June 1914)

AXGELIKA O'REILLY Appellant. "· GEORGE W. PAGE - Responden t. Fal:;e imprisonment by a District Commissiouer-ATrest for selling sznrits 1cithout a licence, by a Di.~trict Commis.~ioner'.~ cler/;-Subsequent Tatification by the District Commissioner of the arrest-Liability of publi(' officer for m!latcjul acts of S1tbordinate-Effect of provisions as to Tewarrl.~ to info1'7ners upon power to proucute at in.~tan('e of Gorernment-F7mc­ tions of clerks to District Commissioners-.Yon-repudiatiou by District Commi.~sioner of wdawful arrest by subordinate -Con ceyance of person char,qed by a police officer, at the instance of the Dist?·ict Commissioner, after issue of summons. The Commi~sioner of the Sherbro District of the Colony instruc ted his clerk to discm·er if any persons were ~elling spirits without a licence. In executing this duty the clerk unlawfully arrested the Appellant and brought her before the District Commissioner, who detnined her for n. short time in his office while he prepared a summons, and then despatched her in the company of a Police Constable to the house of one of her relations. Held that the District Commissioner had not by his action ratified the unl:-IWful arrest by his clerk, and that the detention in the District Commissioner's office pending the preparation and service of the summon s and the subsequent despatch to the town in the company of a Police Constab le did not constitute false imprisonment. A.ppeal from judgment of Purcell, C .. T., in the Supreme Court of the Colony of Sierra IJeone. A. J. Slwrunkeh-Sawyerr for the .Appellant cites :- The Sherbro District Licences Ordinance, 1906 (X o. 8 of 1906), sections 2 and 31 • The Liquor Licence Consolidation Ordinance, 1905, No. 34 o£ 19052 • The Prote ctorate Ordinance, 1901 (No. 33 o£ 1901), sections 64, 65, 66 and 733 • Tobin v . The Queen, 33 L.J., C.P. , p. 199. 1 Now The Bontlle District Licences Ordinanc e, 1924, Cup. 18, sees . 2 and :!, Vol. I., p. 114. 2 Repealed and replaced by the Liquor T,iccnce (Consolidation) Ordinance, 1921. ~ow the Liquor Licence Ordinunc~. 1024. C<·.p. Ill, Yo\. I , p. 'i!lo. 3 ~ow the Protectorate Ordinance, 1924, Cup. 167, stcs. 2(), 26, 27 and 39. Yo!. II., pp. 1140, 1141 and 1144. 30th Jw11, 191-!. O'Hni.LY v. PAOE . VANDER M EULKlf, J. 2 Baxendale v. Bennett, 47 L .J., Q.B., p. 624. The :hlap;i;-;trates' Courts Ordinance, 1905 (X o. 29 of 1905), section 1 'r . Griffin v. Coleman, 28 J1.J., p . 493. ~I arsh v. Joseph, L.R . (1897}, 1 Ch., p . 213 . The Court ~Iesscngen; 01·clinauce, 1907 (Xo . 31 of 1907), section 2'. H'illiJralwm, .\..G., for the Respondent, was not called upon . YAN DER :JIEULEN, J . This is an appenl brought by )fi~s .\.ngelina O'Reilly from a decision gi,en by the Chief Justice, sitting in H1e Supreme Com t, in an action brought by the Appellant, :Jiiss O'Reilly, against the Respondent, lfr. G. ''i'. Page, who at the time material to this action was Dis;trict Commissioner o£ the Sherbro District jn the Colony . I n that action :Miss O'Reilly claimed damages from ) f r. Page iu respect of her unlawful arrest by one Turner, a clerk in the District Commissioner's office, for the alleged reason that she was found to be selling spirits without the licen<·e required by law and on the ground that if :Mr. rage had not originally aulhori;;ed the arJ·eRt lH' had by his subseqtu>nt actions ratifiNl and made himself responsible in law for Turner 's actions. .\fter a hearing la~ting some dayR the Chief Justice 1lPlivcred a written juclg-menL, in which he held that ~Ir. Pnge had 11ot authorised the anest o£ Miss O'Reilly hy 'Turner . that )!r . l>agc hacl not by his suh;;equent aclions ratified or adopted as his own Turner's actions in this respect, and that what he himself had done did not amount to e\cn a technical arrest of )!iss O'Hl·illy. 'l'he Chief .Justico further held that }lr. P age and 'l'urncr were hoth members o£ tbe same Go,ernment D epartment, nnd that following the law laid down in R aleigh t•. Goschen (L.R (1898), 1 Ch., 73), and ·n ainbridge v. Postmaster- General (L.R. (190G). 1 K .n.n. , 102), :Mr. Page <'ould not be held liable in law for the unlawful acts of Turuer which he had not authorised. From that decision :Miss O'Reilly is now appealing to this Court . ::\fr. Sawyerr, appearing for the Appellant, has urged upon us that the decision in the Court below was wrong, becaul'e the pro­ tt>dion which is accorded to ~t Govemmcnt Officer by reason of lhe decisions in Unleigh v . Goschen, and Bainbridge v . The P ost­ master -General only m·i-;es when th<' ad complained of is one 1 'low the llln!(istrntcs' Cout·t Orclinaoc••, 192-1, Cnp. ll8. S<?C 17, Vnl. II., p. 836. : Rept>aled and r~plac.·1l by the Court Me~•engers Ordinance, 1921 (~o. 11 of 1021), sec. 2. Now Cap. 42, sec. 2, Vol. I., p. 222. arising in the performance of some duty wl1irl1 is 1mposrd hy hw, and. in support o£ this contentio11, he citt>d the <'USe of Tobin r. Ucg . (:l2 L .. J., C.P .. 199), a~ showing· that lhe acL of 'Mr. Page, the Ucspondent in thi-; appeal, in sen1ling Turner on the m i,.-;ion which resulted in the arrest of 1\liss O'Reilly, was not one which was imposed upon him by law. Mr. Sawyerr referred to section~ or the Sherbro District Tjicences Ordinance, 1906 (No. 8 of 1906), sections 4 to 7 and section 3!) of the Liquor Licence ConsolidatioJl Ordinance, 1905 (No. ;:l-1: of 1905), and sections G6 and 73 (1) of the Protectorate Ordinance, 1901 (So. 33 of 190P), which sections in the latter Ordinance have been applied to the Sherbro J)islrict by >irtue of Ordinancrs Xo. 8 Qt 19062 and Xo. 8 Qf 19102 • It was urged that altho\1gh these Ordinances imposed upon. tht· District Commissioner of Sherbro certain ministerial and magis !erial duties with regard to the issue of liquor licences and llw punishment of persons wht:n brought before him and conYictecl of confra>ening the liquor lice11ce law;;, they imposed upon hin1 no dut~· to send out pcr-.ous who ma~· be described as spies-in which capnrity il was admitted Turner was acting at the tinw of the A.ppellant's arrest - to discover whether or not persons were selling spirit:; "·ithout a licence . }Ir. Sawyerr also argued thai l'ince the pro>iso to section 71 of the Protectorate Ordinance, 1901', pro>ided for the reward of informers whose evidence should lead to the conviction of per~on~ selling liquor ·without a lirenc(', it followed as a necessary inferenre that such cases 11hould properly be prosecuted on the information of members of the general public. I am unable to agree with the propoo;ition put forward h~· "Mr. Sawyerr for the following reasons :-1\fr . Page, as Distrid Commissioner of Sherhro, was the representati>e of the Govern­ ment in that District for praci .ically all purposes, and no; such discharges many different functions, and among other duties placed upon him he is, by Yirtue of st'ction 8 of the Police Orcli­ nance, 1907 (No. 18 of 1907), placed in charge of the Jlolice Force in that di~;trict, nnd hy section 204 of this Ordinance ihe poliet• are charged with the " preYention and detection of crime or oth<>r infraction o£ the law." This being so, I am clearly o£ opinion that there was a duty cast upon the Respondent by this Ordinance to take all reasonable and proper steps for the pl·c,·entiQn and detection of crime or other infraction<; of the law, and tl1nl the sending by him of the clerk Turner and the Court 1 Now Cap. 16i, !lees. 27 and ll9, Vol. II .. pp. JJ.ll and ll44 2 Now Cnp. 18, Vol. I., p. lt4. 3 Now Cap. 167. ;;cc. 3H. Yol. IT.. p. 1144. 4 ~ow Cup. 156, sees. 8 nod 19, Vol. II .. pp. 1018 and JO.iO O'RlliLLY t•. PAGE. YA"'f DEll ~&ti.&!C'.J. o'n.~ILt\' t•. PAOB V.ur DU lh:utt:~ 1 J. 4 :Messengcl' 13eah Hai, who accompanied him, to enquire \\"hethet or not person:; \\.:re selli11g spiriis c·ontrary to law, was such n reasonahl(' and prO})C'l' step. ·w('re it not so it would appear to me that the law might be brokt'n with impunity in the Shcrbro District. It was further al'gucd by :\Ir. Sawyerr, thnl, in order for the respondent to diH•st himsel£ of the responsibility for Turuer's illegal adion in arre::;ting the .Appellant, he must pro•e that both himself and Tumcr were in this matter ading as members of the same Go•ernment Depal'imC'nt; and that ;;inre Turner was a sixt.l1 Urade Clerk in the Di~t1·ict Commissioner's O:fficC' nt Bonthe, it was clear that be was in 110 sen~e a l'olire or DelediYe Officer, and was therdore, in l'('lation to this matter, in no sense aeting in the same department as the Respondent.. 'l'he clerk Turner, in my opinion, is, in common with the other members of th(' subordinate staff in the District Commis­ sioner's Office, plaet•d there in order that he may be at the disposal o£ th~ Respondent to assist him in the performance of such duties as may de•olve upon him as District Commis­ sioner, and to be nt hiH disposal Ior such duties within those limits as he may <'all upon him to perform. The detection o£ crime, and o£ the infractions o£ Ht(' law being, as I ha•e stated aboYe, \\ ithin the category of sm·h duties, I eonsider that the respondent was entill('tl to call upon Turner to assist him in the per£orman<'e thereof, and that whC'u the Respondrnt and Turner were engaged in this colllmou object they were both members of the same GoYernment Department. Although it is clNu· tl1at the Respondent directed Turner to prosecute enquiries with a view to discoYering whether or not persons were selling spirits contrary to law, so far from there being any e•idence that he authorised him to arrest persons found to he so breaking the law-which arrests would be clearly illegal-the weight of evidence goes to proYe that even if be did not expressly direct Turner not to make such arrests, which fhe Respond ent stated he did, be 11ever, at any time, directly or indirectly instructed or authorised him to make such arrests . .After ha•ing illegally arrested the .Appellant and others, Turner wrote a letter to the Respondent at Bonthe in the custody of a Court ·Messenger. :Mr. Sawyerr contends that even if be did not authorise !he original arrest made hy Turner, the Respondent, by his suhsequent conduct, ratified and adopted as: his own the unlawful art of T1uner, the grounds for this contention beinl!, firstly, that the Respondent did not in his reply to Turner's ( letter exptessly cmHlenm l1is action, but stated that he would issltC ~:>UllllllOHses against any other persons whom Turner might find t.o be selling spirits without the tH•cessary licence; an d, secondly, that the Hespond£'nt did not, eren although he had the full knowledge of the ... \ ppellan t' s illegal arrest by Turner, immediately direct her release bld, on the contmry, detained her in his office for a further period 01 some len or fifteen minutes while he caused a :summons to be prepared, which he sern•d upon her tltere and ihen, aHd eH•nlually scJJt her to the bouse of some relati,·es in company of a polic<' officer, which facls, it is (·ontendell, consl itute<1 a fresla restraint of the ~ppel­ lant hy the Hesponuent himself. l consider that the Respondent would have cxerci"cd much greatl'l' discretion, and would ha•e shqwn far more eonsideralion for the Appellant in her then dish·es~ed condition-the l'' idence is that ~he had travellt•d for SOUle 2E> miles in the rain, and was wet and miserable-if he had not served thr sunnnonses upon hl•t· at that time ; but although I consider that he actctl to this es:teut unwiHely, I do not think that an~·thiug the Hl~pondcnt then did amounted to an arrest of the Appellaut. .Accordiug to tltt' evidence, the .Respondent seems to have het>n genuinely ~OITY for the Appellant, and to have been anxious to find a comfortable dwelling- place for her, and I haYP no doubt thai it was with this objPct that he despatched a police officer with her when she left his office. 'l'his being so, I agree with the Chief Justirc that the Hespoudent is not respousible or liable in law for i.lw unla" ful nrrcsL of the Appellant by Turner, and that hl• did uothi11g himself subs!'­ quently which can be held to amount to an anest of the Appellant by himseil£. I am therefore of opinion that this appeal must be dismissed with costs, but as the Attorney-ticueral, who appears for tho Respondent, has stated that he dor>: not ask for any costs othe r than out-of-pocket l'Xpen:;l·s, the C'osb allowed to the Respondent will be only the l'.um so expended on behalf of the defence in the proceedings ooth in this CoUl't and in the Court uelow. HA WTA. YNE, J. I concur. PlJRCELL, C.J. I concur. O'R•:ILLY 1'. PAOEo VAN DUll lbcul<, J.