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Makutu v Ganilau [2008] FJHC 412; Civil Action HBM 98 of 2007 (7 March 2008)

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. HBM 98 OF 2007

Between:

RATU SAKIUSA MAKUTU
And

OVINI BOKINI
Applicants

and

1. RATU EPELI GANILAU
2. THE ATTORNEY-GENERAL OF FIJI
3. RATU JOSEFA ILOILOVATU ULUIVUDA
Respondents

Mr. K. Vuetaki with Mr. S. Komaisavai for Applicants
Mr. A. K. Narayan with Mr. S. Sharma for Respondents
Dr. S. Shameem as Amicus Curiae

DECISION
(Striking out application)

1. By summons dated 14 September 2007 the respondents are seeking an order that the applicants' application for constitutional redress be struck out under Order 18 Rule 18(1) of The High Court Rules 1988 and under the inherent jurisdiction of this Court.
2. The Grounds on which the application is made are as follows (as in the said summons):

"(a) That the Applicants' application is not properly one for Constitutional Redress as envisaged under section 41 of the Constitution.

(b) That the Applicants have no locus standi to bring this application to challenge the termination of their appointment as members of the Great Council of Chiefs as their purported appointments were made ultra vires the procedures and the powers conferred under the Fijian Affairs Act and the Regulations, and are invalid.

(c) That the Applicants' application discloses no reasonable cause of action.

(d) That it is scandalous, frivolous or vexatious; and

(e) That it is otherwise an abuse of process of the Court.

3. By Notice of Amended Motion dated 21 August 2007 the applicants applied for constitutional redress seeking certain declarations and orders.
4. While the hearing of this application was pending, the respondents made the present application to strike out. This application is supported by the affidavit of Ratu Epeli Ganilau (the first respondent) sworn 13 September 2007.
5. I have before me for my consideration the oral and written submissions from both sides, as well as from Dr. Shaista Shameem of the Human Rights Commission as amicus curiae.

Issues

6. A number of issues have been raised by the respondents, namely:

a. limitation of time for making application

b. availability of alternative remedy

c. application is not within the scope of s71.

d. The applicants have no locus standi.

Consideration of the issues

(a) Limitation

7. It is the respondents' submission that under the High Court (Constitutional Redress) Rules 1998 r3(2) there is a limitation period of 30 days within which an application for constitutional redress ought to be made. It provides:

"(2) An application under paragraph (1) must not be admitted or entertained after 30 days from the date when the matter at issue first arose."

8. The respondents submit that the applicants have not given any satisfactory reason why they failed to comply with the above Rule within time before the expiry of 30 days from 17 April 2007 when the Suspension Regulations were made.

They submit that in these circumstances the present application ought to be dismissed as being out of time.

9. In response to the argument about being out of time the applicants maintain that they were within reasonable time. In support of this proposition they said that the 1^st Respondent had purported to gazette the Fijian Affairs (Great Council of Chiefs) (Suspension) Regulations 2007 on 17th April 2007. Letters of termination were then received by the GCC members. On the 24th of May 2007 the Applicants filed amended application for leave for judicial review; however, this was withdrawn when the 1^st respondent publicly revoked the above regulations. Acting on this the applicants filed this action on the 13^th of September 2007 after a press release in August which was made by the 1^st respondent stating that despite the revocation of the said Suspension Regulations, the membership of the Council remained terminated.

The applicants say that they did what was only a reasonable thing to do given the situation. They say that anybody relying upon hearing the revocation by the Minister of the regulations one would assume that the GCC would be back to status quo. Since this was not the case, time would start to run from then and the applicants took note of this when they lodged in September.

10. The applicants submit that r3(2) was struck out as unconstitutional by this Court in Metuisela Railumu v Commander, Republic of Fiji Military Forces HBM81J of 2002S (Jitoko J, 24 February 2002). Therefore they say that there is no existing rule made by the Chief Justice under section 41(10) "with respect to the time within which such applications are to be made to the High Court".

According to Justice Jitoko the test is that "application under this particular section must be made within reasonable time". He commented that whether the period provided in the Limitation Act could be applied as a yardstick for a reasonable time was for the court to decide.
And in Senitiki Naga v The Commander of RFMF and Others (HBM0063 of 2003), Singh J stated that "The applicant is the one who is outside the time limits. It is for him to give cogent reasons to persuade the court to grant him the indulgence to pursue these proceedings out of time".

(b) Alternative Remedy

11. Section 41(4) of the Constitution provides for 'alternative remedy'

The respondents submit that the applicants could have applied for judicial review. However, they have already done this but discontinued it and then recently they brought it up again in action No. HBJ 39 of 2007 at Suva. It is the contention of the respondents that the present application cannot be maintained as it is an abuse of process to continue with this application and also have the Judicial Review application. It is further stated that the courts have strictly applied the provision in the rules relating to alternative remedies to dismiss a constitutional redress application.
In Naga's case His Lordship said that the cause of action was in tort. He said:
"Section 41 should be invoked with great caution. One should not lose sight of section 41(4) which empowers court to refuse relief if there is adequate alternative remedy. In the present action the plaintiffs' detention be it lawful or unlawful is over. He says he suffered injuries. His summons shows that he is seeking damages for injuries and ill-treatment and unlawful detention. The cause of action is clearly in tort. To establish damages one would need to take oral evidence to assess credibility and quantum. Such cases are normally brought by filing a statement of claim and not by type of procedure laid in the Constitutional Redress Rules. The qualifying word is constitutional not any redress." (emphasis mine)

12. [12] On 'alternative remedy' it is the applicants' submission that the facts of this case are that the members of the Great Council of Chiefs exercised a constitutional function and were terminated from membership effective from the day after. Their election, nomination and appointment were made under a quasi-constitutional Act for the interest of Fijians under section 3 of that protective legislation, and the purported termination of such election or appointment were in retaliation to their exercise of a constitutional function as to whether or not to lend their support to a Presidential nominee. The issues are therefore constitutional where remedies are declarations of constitutionality or otherwise and consequential orders of injunction, damages and costs. It is therefore not one that would fall for an alternative remedy under section 41(4) as cautioned by the court in the Naga case. In that case the applicant sought damages for personal injuries where credibility on the issue of liability arid quantum was required. The application for constitutional redress was refused because there was an alternative remedy in tort; for this case there is no alternative remedy available.
13. I hold that the alternative remedy argument does not lend itself to striking out the application without a proper hearing of the matter.

(c) Is it within the scope of s.41?

14. The relevant provisions relating to application for constitutional redress are contained in section 41. Sections 41 and 43 are also very significant clauses in relation to constitutional redress applications.
15. I am of the view that without more extensive argument it is not quite clear whether the present action falls within the purview of section 41. This is something for the Court to decide after hearing counsel from both sides further on it, namely, whether the facts of this case fall appropriately within the constitutional ambit which raise specific human rights issues under the Bill of Rights (Chapter 4) provisions or public international law by virtue of section 43(2).
16. It is the respondents' submission that the function that is accorded by the Constitution can be found in Chapter 8 which relates to all other important functions of the GCC. None can be found in chapter 4 thus there can be no redress under section 41 for any breaches of section 116 of the Constitution or the Fijian. Affairs Act or any action taken under it.
17. It is the applicants' submission that this is an action properly brought for constitutional redress submitting further that there has been a breach of sections 25(1), sections 30(1)(a) and s31(1). The respondents reject this argument as these provisions do not apply to this case.

(d) Locus standi

18. On the question of locus standi of the applicants the respondents made a lengthy submission stating that what is relevant is the legislative background to ascertain the legal status of the GCC unlike what the applicants are doing, that is going at some length on the historical background of the GCC. The respondents state that the issue of validity as to the applicants as members of the GCC goes back to at least 1993.
19. The respondents submitted at length the effect of various ordinances which eventually brought into being the Fijian Affairs Act.
20. The respondents submit that when the subsequent legislation that is the 1993 Regulation gave the power to the minister to appoint, elect and nominate persons for the composition of the GCC, it was an act that was outside the scope of his authority under section 5 of the Fijian Affairs Act. Section 3 reserves the power to the President. In exercising the power vested in the President the Minister had acted ultra vires.

It is the gist of their submission that the error was perpetuated from section 64 of the Constitution (Statutory Amendment) Order 1970 in failing to renumber the sections when repealing section 3 of the original Act. On subsequent revision the error was further perpetuated by the draftsman and carried over to the current Act, Cap 120.

21. The question arises whether this error can be corrected through the Courts by way of judicial interpretation. Without pronouncing finally on this aspect in this case, I refer to the following words of Lord Nicholls of Birkenhead in Inco Europe Ltd & Others v First Choice Distribution (a firm) & Others {2000] 2 All ER 109 at 115 para 2:

"It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statute*, language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words."

Lord Nicholls goes on to say that "some notable instances are given in Professor Sir Rupert Cross' admirable opuscule, Statutory Interpretation (3rd ed. 1995) pp 93-105. He comments (p103):

In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role."

It is also pertinent to note the following passage from the judgment of Lord Nicholls at p115 ibid which bears on the argument put forward by the respondents:

"This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of Judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must he abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation (see per Lord Diplock in Jones v Wrotham Park Settled Estates [1979] 1 All ER 286 at 289, [1980] AC 74 at 105-106)

22. It is for the applicants to show that they have the locus standi

Principles applicable to striking out

23. The principles governing the grant or refusal of application to strike out under Or.18 r18 are well-settled.
24. In deference to the lengthy submissions from both sides I have discussed in some detail the arguments of counsel. In the light of the facts and circumstances of this case I would now apply the principles pertaining to striking out which I set out hereunder.
25. In the context of this case on striking out I find the following statement of Megarry V.C. in Gleeson v Wippell (J) & Co. Ltk [1977] 1 WLR 510 at 518 apt:

"First, there is the well-sealed requirement that the jurisdiction to strike out an endorsement or pleading, whether under the rules or under the inherent jurisdiction, should be exercised with great caution, and only in plain and obvious cases that are clear beyond doubt. Second, Zeiss No. 3 [1976] Ch. 506 established that, as had previously been assumed, the jurisdiction under the rules is discretionary; even if the matter is or may be res judicata, it may be better not to strike out the pleadings but to leave the matter to be resolved at the trial."

26. In considering this application on abuse of the process of the court I have borne in mind the following passage Halsbury’s Laws of England 4^th Ed Vol. 37 para 434 which I consider pertinent:

"An abuse of the process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the process is misused. In such a case, even if the pleading or indorsement does not offend any of the other specified grounds for striking out, the facts may show that it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or indorsement or any offending part of it Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court."

27. On the meaning of 'reasonable cause of action' I refer to the notes to Or 18 r 19/11 of the Supreme Court Practice (UK) 1979 Vol 1 where it is stated:

".....A reasonable cause of action means a cause with some chance of success when only the allegations in the pleadings are considered (per Lord Pearson in Drummond Jackson v British Medical Association [1970] 1 All ER 1094, CA). So long as the statement of claim or the particulars (Davey v Bentinck [1893] 1 WB 185) disclose some cause of action, or raise some question fit to be decided by a Judge or a jury, the mere fact that the case is weak, and not likely to succeed is no ground for striking it out (Moore v Lawson) (1915) 31 TLR 418, CA; Wenlock v Moloney [1965] 1 WLR 1238 [1965] 2 All ER 871, CA)....."

Similarly, Lindley M.R. in Hubbuck & Sons, Ltd v Wilkinson, Heywood & Clark Limited [1898] UKLawRpKQB 176; [1899] 1 QB 86 at page 91 said:

"...summary procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks. The use of the expression "reasonable cause of action" in rule 4 shews that the summary procedure there introduced is only intended to be had recourse to in plain and obvious cases."

28. In Attorney-General v Shin Prasad Halka (1972) 18 FLR 210 Marsack J.A. said of the predecessor to order 18 r.18 of High Court Rules at page 215:

"... I think it is definitely established that the jurisdiction to strike out proceedings under Order 18 rule 19 should be very, sparingly exercised where legal questions of importance and difficulty are raised."

Conclusion

29. To sum up, on the facts and circumstances of this case, in the light of what I have stated above, bearing in mind the principles applicable in an application of this nature, I do not consider that it would be right to strike out the application for constitutional redress under Or 18 r 18(l). I would rather hear the parties on the substantive matter.
30. In this case certain points of law have been raised. On the facts and circumstances of this case I apply the principle of law that:

"it is not the practice in the civil administration of our Courts to have a preliminary bearing, as it is in crime." (Wenlock v Moloney [1965] 1 WLR at 1242).

31. On the issue of abuse of process particularly on the facts and circumstances of this case, I find the following extract from the judgment of Lord Hope of Craighead in the Privy Council case of Thakur Persad Jaroo y Attorney General [2000] 5 LRC 258 at 270 quite pertinent to be borne in mind when the substantive action herein comes up for hearing:

"In Harrikissoon v A-G (1979) 31 WIR 348 at 349 Lord Diplock said with reference to the provisions in the Trinidad and Tobago (Constitution) Order in Council 1962:

The notion that whenever there is a failure by an organ of government or a public authority or public officer to comply with the law this necessarily entails the contravention of some human right or fundamental freedom guaranteed to individuals by Chapter 1 of the Constitution is fallacious. The right to apply to the High Court under section 6 of the Constitution for redress when any human right or fundamental freedom is or is likely to be contravened, is an important safeguard of those rights and freedoms; but its value will be diminished if it is allowed to be misused as a general substitute for the normal procedures for invoking judicial control of administrative action. In an originating application to the High Court under section 6(1), the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the subsection if it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedom'."

32. It is for the applicants also to consider the true nature of the right allegedly contravened in this case. They must also consider whether, having regard to all the circumstances of the case some other procedure either under the common law or pursuant to statute might not more conveniently be invoked. It is a food for thought for the applicants that the present use of the procedure by them is no longer appropriate, then they should seriously consider whether steps should be taken to withdraw the action as it could be that its continued use in such circumstances will also be an abuse.
33. I conclude with the following extract from the judgment in National NBf Finance (Fiji) Limited v Nemani Bill (Civil Appeal No. ABU 0057 of 1998 at p.2) which clearly enunciates and determines the principles for striking out:

"The law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be proved. If a legal issue can be raised on the facts as pleaded then the courts will not strike out a pleading and will certainly not to do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention..."

34. For these reasons on the facts and circumstances of this case, on the authorities and in the exercise of Court's discretion I refuse the respondents' application.
35. The summons is therefore dismissed with costs in the cause.

D. PATHIK
JUDGE

At Suva
7 March 2008