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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. 88 OF 2002
Between:
IOWANE TAROGA
Plaintiff
and
1. THE ATTORNEY GENERAL
2. COMMISSIONER OF POLICE
Defendants
Mr. J.K.L Maharaj for the Plaintiff
Mr. J. Udit for the Defendant
DECISION
By originating summons dated 28 February 2002 (as amended on 30 May 2002 ) Iowane Taroga (the plaintiff) has brought this action against The Attorney-General and the Commissioner of Police (the ‘defendants’) seeking certain orders and declaration as more particularly set out in the said summons.
This summons is supported by the affidavit of the plaintiff and filed herein.
An Affidavit in Reply was filed by Isikia Savua (the second defendant) on 24 June 2002 to which the plaintiff filed affidavit in Reply on 12 July 2002.
On 18 June 2002 the defendants applied by Summons to strike out the Amended Originating Summons filed on 30 May 2002 or alternatively for the stay of this action pending the finalisation of the disciplinary proceedings instituted against the plaintiff.
As ordered both counsel filed written submissions for the Court’s consideration.
The Chronology of Events is set out in the defendants’ submission at page 2.
The full facts of the case are set out in the High Court judgments which are annexed to the second defendant’s said affidavit.
Consideration of the application
The plaintiff is a former Police Constable who with another police officer was charged for murder on 28 February 1994.
They were first tried in the High Court and were convicted for murder on 5 September 1995. The Fiji Court of Appeal quashed this conviction and sentence on 11 February 1997 and ordered a retrial on the ground that they were not properly represented in the trial.
On 6 March 1998, they were tried again before another Judge in the High Court and were found guilty and sentenced to life imprisonment.
On appeal, the Fiji Court of Appeal quashed both the conviction and sentence and ordered a retrial. Subsequently the Director of Public Prosecutions entered a nolle prosequi.
Thereafter the then counsel wrote to the Commissioner of Police asking for the plaintiff’s reinstatement. In reply, the plaintiff was informed that he had already been dismissed from the Police Force.
This answer gave rise to the plaintiff instituting the present action by way of originating summons but the plaintiff in this summons has not asked for re-instatement.
At the outset, it is worthy of note that the plaintiff submits through his counsel that there are triable issues which require proof by reception of viva voce evidence. Even the affidavit of second defendant states that oral evidence will be required.
This raises the question whether the correct procedure in bringing the action has been adopted or not, that is, whether the action should have been by way of writ of summons or by way of judicial review under Order 53 of The High Court Rules. These are the issues and grounds actually raised by the defendants in this application.
The defendants oppose the originating summons procedure adopted by the plaintiff on three grounds.
Firstly, that the nolle prosequi entered against the Plaintiff is not an acquittal therefore he should not be entitled to be paid salary and compensation. Secondly, the matter falls within the ambit of public law thus it should have been initiated through an application for judicial review. Lastly, the third ground is that the proper law to deal with engagement, discipline and removal of police officers is the Police Act. Consequently the action by the Plaintiff is an abuse of the process of the Court.
Striking out
The defendants’ application is to strike out the originating summons.
On the rule as to ‘striking out’, at the outset I refer to the case of Doyle & Others v Northumbria Probation Committee (1991) 1 W.L.R. 1340 at 1347 where Henry J stated three main principles, namely:
“Three main principles emerge from those decisions. (i) In cases within the O’Reilly v Mackman [1983] UKHL 1; [1983] 2 A.C 237 doctrine, the courts will be astute to see that there is no evasion of the Order 53 protection designed to eliminate groundless unmeritorious or tardy harassment of local authorities by the use of an action by writ which in reality is seeking a redress for the infringement of public law rights. (ii) However, in cases not within the rule there is no necessary or overriding objection to public law issues being litigated in writ actions, whether in the Queen’s Bench Division or in the Chancery Division... (iii) Order 53 should not be used for the litigation of private law claims”.
Nolle prosequi
One of the grounds on which the defendants say that the plaintiff cannot bring this type of action is because of the entry of nolle prosequi. He says that this is not equivalent to acquittal. This is not a ground sufficient enough to claim his unpaid salary and compensation. He submits that if “acquittal” is the sole available ground to claim for unpaid salary and compensation in their case, ‘nolle prosequi’ cannot be used as basis for such claim.
I am not required in this application to go into either the merits or demerits of the entry of nolle prosequi or its consequences on the plaintiff’s claim.
Subject to what I say hereafter this is a straight out claim by the plaintiff against the defendants which includes the second defendant as his employer claiming, inter alia, ‘salary arrears and other emoluments’ and ‘compensation’ to be assessed by the Court.
There has been correspondence between the plaintiff’s counsel Mr. J K L Maharaj (now deceased) and the Commissioner of Police. In one of these letters dated 26 April 2001 written on behalf of the Commissioner in reply to Mr. Maharaj’s letter to reinstate the plaintiff after entry of mode, it is stated that:
“Please be advised that these two officers were dismissed from the Fiji Police Force with effect from 05/09/95 with the concurrence of the Disciplined Services Commission after the two Officers were duly convicted on the charge of murder.”
It appears that the plaintiff is a dismissed employee of the defendants. He is therefore making the present claim following the originating summons procedure which he is entitled to do. In his case this is not a ‘Public law’ matter to require him to proceed by way of judicial review.
It has been stated in affidavit evidence in this case that oral evidence has to be given to prove the case. Perhaps for this reason depending on what advice is given to the plaintiff, an application may have to be made under Order 28 r.9 of the High Court Rules 1988 which provides, inter alia:
“9. – (1) Where, in the case of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may in particular, order that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof”.
In this regard I refer to the case I dealt with in Dharam Singh & Ors. v. Hardayal Singh & Others (40 FLR 156) where I held that the grounds advanced to strike out did not justify dismissing the action which the court could order to be continued or if commenced by Writ at a later stage.
Whatever course is adopted it will be for the plaintiff to prove his case on a balance of probabilities i.e. on the civil standard.
As the pleadings stand at present and as stated earlier that more likely application may have to be made by the plaintiff to apply under order 29 r 9 and the plaintiff may have an uphill battle to prove the case. Bearing in mind the principles involved in striking out I am inclined to let it proceed and let the plaintiff prove his case. In this regard I would draw the plaintiff’s new counsel’s (yet to be appointed) attention to the observation in Litiwai Setevano v The Attorney-General 41 FLR 135, as this case was somewhat similar in some respect and could have a bearing on this case.
Constitutional argument
On constitutional argument put forward by the plaintiff in reliance upon section 28(1)(k) of the 1997 Constitution, I agree with counsel for the defendant’s that this is not a case of autrefois convict/acquit and hence this section has no relevance to the plaintiff’s assertion in his affidavit that the nolle prosequi disentitles the second defendant from subjecting the plaintiff to a disciplinary process if he could.
Under s153 of the Constitution the Commission is independently allowed or the Disciplinary Service Commission to subject Officers in the discipline service to undergo a disciplinary process irrespective of an acquittal.
However, in this case the plaintiff’s employment was terminated and the issue before the Court is whether he could institute proceedings as he has done by way of originating summons.
Without dealing with this aspect any further, since the matter of alleged breach of the plaintiff’s fundamental freedom has been raised by the plaintiff I would like to draw the plaintiff’s attention very strongly to the following passage from the judgment of Lord Diplock in the Privy Council case of Maharaj v Attorney-General of Trinidad and Tobago (No. 2) [1979] AL 385 at 399:
“... no human right or fundamental freedom ... is contravened by a judgment or order that is wrong and liable to be set aside on appeal for an error of fact or substantive law, even where the error has resulted in a person’s serving a sentence of imprisonment. The remedy for errors of these kinds is to appeal to a higher court. Where there is no higher court to appeal to then none can say that there was error. The fundamental human right is not to a legal system that is infallible but to one that is fair.”
Public and Private Law
The defendants’ second argument has been strongly put that this case falls within the ambit of public law and therefore it should have been initiated through an application for judicial review.
In this case the plaintiff is a dismissed employee. He is no longer in employment of the defendants as a police officer. He is aggrieved by the dismissal. For so long after nolle prosequi has been entered the proposed or alleged disciplinary action had either not commenced or has not been finalized.
The question therefore is whether the plaintiff should have brought judicial review proceedings or an ordinary action against the defendants.
It was stated in Trustees of the Dennis Rye Pension Fund and Another v Sheffield City Council (The Times Law Report 20.8.97 C.A.) that:
“...the court should look at the practical consequences of the choice made rather than just technical questions concerning the distinction between the public and private rights.”
The court went on to say:
“If the choice made had no significant disadvantages for the parties, the public or the court, then it should not normally be regarded as constituting an abuse of process”.
In that case the issues also arose and commented upon as to the relationship between public and private law proceedings resulting in ‘substantial volume of the resources of the parties and the courts were still being consumed to little or no purpose over largely tactical issues as to whether the correct procedure had been adopted’.
In this case the fact that the plaintiff believes that he is entitled to ‘salary and compensation’ bringing ordinary action to enforce that right is not in itself an abuse of the process.
In this application I adopt the following words of the Master of the Rolls in the Sheffield City Council case (supra) which fits this case:
“Any challenge to a council’s refusal to express satisfaction would depend on an examination of issues largely of fact which were more appropriately examined in the course of ordinary proceedings than on an application for judicial review.”
The Master of the Rolls ( Lord Woolf) further stated and it is worthy of note:
“What could be done to stop the constant unprofitable litigation over the divide between public and private law proceedings? The guidance which Lord Diplock gave in O’Reilly v Mackman ([1983] 2 AC 237) involved recognising:
The following statements of the Master of Rolls should be borne in mind and I consider that they are pertinent in determining the issue before me:
In the majority of cases it should not be necessary for purely procedural reasons to become involved in arid arguments as to whether the issues were correctly treated as involving public or private law or both. For reasons of substantive law it might be necessary to consider that issue.
If judicial review was used when it should not, the court could protect its resources either by directing that the application should continue as if begun by writ or by directing it should be heard by a judge
His Lordship further stated:
“If a case was brought by an ordinary action and there was an application to strike out the case, the court should, at least if it was unclear whether the case should have been brought by judicial review, ask itself whether, if the case had been brought by judicial review when the action had been commenced, it was clear leave would have been granted. If it would, then that was at least an indication that there had been no harm to the interests judicial review was designed to protect.
In addition, the court should consider by which procedure the case could be appropriately tried. If the answer was that an ordinary action was equally or more appropriate than an application for judicial review that again should be an indication the action should not be struck out.
Conclusion
To conclude, I am of the view that what was held in the House of Lords case of Davy v Spelthorne Borough Council [1983] UKHL 3; [1983] 3 All ER 278 at 279 hits the nail on the head as far as this issue is concerned and that determines the issue.
It was there held as follows:
The plaintiff’s action was not an abuse of the process of the court because –
(a) (Per Lord Fraser, Lord Roskill, Lord Brandon and Lord Brightman) The plaintiff’s claim for damages in negligence was an ordinary action in tort concerning his rights at common law and did not raise any issue of public law. Accordingly, the rights concerned were not rights to which the plaintiff was entitled to protection under public law, and the general rule that a plaintiff was not entitled to defend by way of an ordinary action a right to which he was entitled to protection under public law did not apply. Furthermore, if the claim based in negligence was struck out the only way in which the plaintiff could bring his claim for damages before the court would be by obtaining leave to seek judicial review and then relying on RSC Ord 53, r 7(1) to attach a claim for damages to his claim for judicial review, and that would be an awkward and uncertain process to which the plaintiff ought not to be subjected unless it was required by statute.
(b) (Per Lord Wilberforce) In order for the plaintiff’s proceedings, which were proceedings at common law, to be an abuse of the process of the court, it had to be shown that the plaintiff’s claim both could and should be brought by way of judicial review. However, since no prerogative writ or order could be sought in relation to the claim and consequently no declaration or injunction could be asked for, no right to judicial review existed under Ord 53, r 1 and consequently no claim for damages could be made under Order 53, r 7 since a claim to damages under that rule was linked to a claim for judicial review. Furthermore, even if a claim could be brought under the procedure for judicial review. Furthermore, even if a claim could be brought under the procedure for judicial review, Ord 53 did not state that the procedure which it authorised was the only procedure which could be followed, and accordingly the plaintiff could prima facie choose the court and the procedure which suited him best, the onus being on the council to show that in doing so the plaintiff was abusing the court’s procedure.
For the above reasons and in the circumstances the plaintiff’s action is properly constituted, but I must say that he will need proper legal advice in the further conduct of this action as it will be for him to prove his case on the civil standard of proof. I certainly am not able to strike the action out as the pleadings stand at present.
The two applications of the defendants are therefore dismissed with costs in the cause.
D. Pathik
Judge
At Suva
23 April 2004
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