IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

HBC No.: 288 of 2014

BETWEEN:

(1) JAYS HOLDING LIMITED a duly registered company with its registered office in Fiji
(2) JAG RAM of Lot 1 Waila, Nausori, Managing Director
(3) SUNITA of Lot 1 Waila, Nausori, Domestic Duties
PLAINTIFFS

AND:

THE COMPTROLLER OF CUSTOMS, as the Chief Executive Officer of the Fiji Revenue and Customs Authority, a statutory body established by the Fiji Islands Revenue and Customs Authority Act 1999.
DEFENDANT

Counsel: Mr. B. Solanki for the Plaintiffs
Ms. Lemaki M for the Defendant

Date of Hearing: 12th March, 2015 
Date of Judgment: 29th May, 2015

Catch Words - Customs Act 1986 Section 158, Section, Notice of Seizure- 158(2) mandatory, Goods retained in contravention of Section 158(2) – Criminal Charges relating to unlawfully retained goods, Bill of Rights Chapter 2 of the Constitution of the Republic of Fiji , Sections 6, 7 and 14(1)(K) - interpretation of exclusion of ‘unlawfully obtained evidence’ 

JUDGMENT

INTRODUCTION

1. The Plaintiffs filed this Originating Summons against the Defendant who is the Comptroller of Customs seeking immediate release of inter alia, the Plaintiffs goods, currencies etc. The Defendant states that the said items that were taken possession and now ‘detained’ by the Defendant, as they are productions in a pending criminal prosecution before a Resident Magistrate. Prior to the institution of criminal action relating to the said items the Defendant had issued ‘Notice of Seizure’ in terms of the Customs Act 1986(Customs Act) and the Plaintiffs had claimed the said items within stipulated time period in terms of Section158 of Customs Act, but the Defendant had failed to take any action in terms of the said provision in order to prevent mandatory release of the said items. On that basis the Plaintiffs are claiming immediate release of the goods presently ‘detained’ by the Defendant.

FACTS

2. The Plaintiffs were engaged in the business of importation and wholesale and retail sale of compact discs, digital video device, memory cards, mobile phones and other electronic goods, plastic bags and kava. The business was operated from Waila Road, Nausori in the name and style of, Jays Holding Limited (JHL) the 1st Plaintiff. The 2nd and 3rd Plaintiffs are the directors of JHL.

3. The Plaintiffs were the subject of a Customs Investigation in 2013 and 2014. On the 6th of August 2013, the Defendant’s officers conducted a search on a van registration number HC 347 belonging to JHL.

4. During the search a number of items were detained and were subjected to Detention Notices 111354 and 111357 the latter being a Detention Notice issued for FJS 7,255. The FJ $7255 in Fijian currencies, assorted liquor and blank DVDs were detained by Customs Officers.

5. On the same day, a further search was conducted at JHL’s warehouse at Waila Subdivision, Nausori. Customs Officers detained assorted liquor, assorted CD’s and DVD’s, empty cartons and DVD writers. 

6. A Notice of Seizure was issued some 9 months later on 6 May 2014. However, the Notice of Seizure appears not to contain all the items detained by Customs. On the 7th of May 2014, the Plaintiff through an email did make a claim on the said goods.

7. On the 9th of August 2013, JHL through its director, 2nd Plaintiff, received a short payment advice dated 8.8.2013, seeking payment of the sum of $1,321,026.38. On that same day he received a Departure Prohibition Order (DPO) valid for three years from the date of issuance of the same.

8. On 13th August, 2013 the Plaintiff in writing pleaded guilty to the said short payment advice but items 6 and 7 on the said short payment advice were disputed by the Plaintiff and he did not plead guilty to them. The 2nd Plaintiff specifically admitted non-payment of relevant duty for items 1,2,3,4 and 5 in the said short payment advice. He had also admitted that his tax affairs were not in order and sought time for payment of short payment.

9. On the 6th of March 2014, at the Nadi International Airport, 2nd and 3rd Plaintiffs were prevented from travelling. DPO was operative against the 2nd Plaintiff, but not against 3rd Plaintiff. Their bags were searched and Customs detained currencies found in 3rd Plaintiff’s bag. A Detention Notice number 114196 was issued regarding the currencies detained.

10. 3rd Plaintiff’s passport bearing No 860956 was also retained but did not appear on the detention notice and this retention of passport by the Defendant was admitted in the affidavit in opposition and also at hearing this fact was admitted by the counsel who appeared for the Defendant. It seemed there was no law supporting that act of retention of the passport by the Defendant or its officers.

11. On that same day, Customs Officer, Mr. Selema Rokodurucoko, who has sworn an affidavit in reply in this case, issued a Notice of Seizure to3rd Plaintiff . In accordance with the Notice of Seizure, 3rd Plaintiff, made a claim for the currencies on 11 March 2014.

12. On the 17th March 2014, the Defendant’s officers conducted a search at Narere, Nasinu, where goods belonging to JHL were detained and a Detention Notice Number 11637 was issued by the Defendant. On the 2nd of April 2014, the Defendant issued a Notice of Seizure. On the 3rd of April 2014, 2nd Plaintiff made a claim for the goods the subject of the Notice of Seizure.

13. On the 1st of July 2014 the Defendant served 2nd Plaintiff charges for breaches of the Customs Act. Mr. Jag Ram responded by denying the charges and again stated that the goods the subject of Notice of Seizure dated 2nd April 2014 be returned to him within 7 days.

14. On the 22nd of July 2014, the Defendant served further charges on 2nd Plaintiff and he denied the charges in his letter of the same date. Those charges further stated that if the charges are not rejected he would be prosecuted in a court of law for a criminal action.

15. The 2nd Plaintiff received Charges dated 4th August, 2014, filed by the Defendant in the Magistrate Court of Suva, and the charges relate to possession of smuggled goods contrary to Section 137(h) of the Customs Act in regard to cartons of blank CDs, liquor bottles, and ‘Woodstock’ cans.

16. On the 22nd of August 2014, solicitors for the Plaintiffs wrote a letter to the Defendant to seek clarification on why the seized goods were not being released to the Plaintiffs after the expiration of the period specified in section 158(1) of the Customs Act. The Defendant did not respond to the said letter.

17. Plaintiffs in this Originating Summons are claiming the following Orders as contained in their Originating Summons: -

a)	That the Defendant immediately releases to the Plaintiffs the goods and currencies seized and detained on the 6 August 2013 as set out in the Defendant’s Detention Notices numbers 111354 and 111357 and Notice of Seizure dated 6 May 2014;

b)	That the Defendant immediately releases to the Plaintiffs the currencies seized and detained on 6 March 2014 as set out in the Defendant’s Detention Notice number 114196 and Notice of Seizure dated 6 March 2014;

c)	That the Defendant immediately releases to the Plaintiffs the goods seized and detained on 17 March 2014 as set out in the Defendant’s Detention Notice number 11637 and Notice of Seizure dated 2 April 2014;

d)	That the Defendant immediately releases to the Third Plaintiff, her Fijian Passport No. 860956 seized and detained by the Defendant on 6 March 2014;

e)	A Declaration that the Defendant has not complied with section 158(1) of the Customs Act 1986 in relation to the goods and currencies seized and detained on 6 August 2013 and as set out in the Defendant’s Detention Notices numbers 111354 and 111357 and Notice of Seizure dated 6 May 2014 

f)	A Declaration that the Defendant has not complied with section 158(1) of the Customs Act 1986 in relation to currencies seized and detained on 6 March 2014 and as set out in the Defendant’s Detention Notice number 114196 and Notice of Seizure dated 6 March 2014; 

g)	A Declaration that the Defendant has not complied with section 158(1) of the Customs Act 1986 in relation to goods seized and detained on 17 March 2014 as set out in the Defendant’s Detention Notice number 11637 and Notice of Seizure dated 2 April 2014.

h)	A Declaration that the Defendant is unlawfully holding the Plaintiffs goods seized and detained on 6 August 2013 as set out in Defendant’s Detention Notices numbers 111354 and 111357 and Notice of Seizure dated 6 May 2014;

i)	A Declaration that the Defendant is unlawfully holding Plaintiffs currencies seized and detained on 6 March 2014 as set out in Defendant’s Detention Notice number 114196 and Notice of Seizure dated 6 March 2014;

j)	A Declaration that the Defendant is unlawfully holding Plaintiffs goods seized and detained on 17 March 2014 as set out in Defendant’s Detention Notice number 11637 and Notice of Seizure dated 2 April 2014;

k)	A Declaration that the Defendant’s actions in refusing to release the Plaintiffs goods and currencies seized and detained on 6 August 2013 is a breach of section 158(2) of the Customs Act 1986 and is unlawful;

l)	A Declaration that the Defendant’s actions in refusing to release the Plaintiffs currencies seized and detained on 6 March 2014 is a breach of section 158(2) of the Customs Act 1986 and is unlawful;

m)	A Declaration that the Defendant’s actions in refusing to release the Plaintiffs goods seized and detained on 17 March 2014 is a breach of section 158(2) of the Customs Act 1986 and is unlawful;

n)	A Declaration that the Defendant’s actions on 6 March 2014 in seizing and the continued detention of the Fijian Passport No. 860956 of the Third Plaintiff are unlawful.

o)	An Order that the Defendant pay the Plaintiffs damages and losses to the amount of $1,323,223.70.

p)	Interest;

q)	Such further or other relief as shall be just.

r)	An order that the Defendants pay the Plaintiff’s costs of these proceedings

ANALYSIS

18. In terms of Section 129(1) of the Customs Act, goods can be seized or detained by the Defendant or an authorized officer and it states as follows

 ‘129.-(1) An officer or other person authorized in that behalf by the Comptroller may at any time seize or detain any goods liable to forfeiture under the customs laws or any goods which such officer or other person has reasonable grounds to believe are liable to forfeiture thereunder.(emphasis added)

The relevant detention notices were issued in terms of the said provision of law.

19. The Sections 156 and 157 of the Customs Act, state as follows,

PART XXI- LEGAL PROCEEDINGS

 Notice of seizure to be given

156.-(1) If goods have been seized as being liable to forfeiture under this Act, then, unless such goods were seized in the presence of the owner thereof or, in the case of an aircraft or ship, of the master thereof, the Comptroller shall give notice in writing of such seizure and the reasons therefore to the owner thereof or, in the case of an aircraft or ship, to the master thereof.

(2) If goods have been seized in the presence of a person coming within the definition of owner for the purposes of this Act, then it is not necessary for the Comptroller to give notice of the seizure thereof to any other person coming within such definition, and a notice given to any person coming within the definition of owner is deemed to be notice to all other persons coming within such definition.

 (3) Where no person coming within the definition of owner is known, then it shall not be necessary for the Comptroller to give notice of the seizure to any person.

 (4) If goods seized are of a perishable nature or are living creatures, they may forthwith be sold in accordance with the provisions of section 63 by the Comptroller either by public auction or private treaty and the proceeds of the sale be retained by the Comptroller and dealt with as if they were such goods.

Notice of claim

157.-(1) Where goods liable to seizure under the provisions of this Act have been seized, the owner thereof or, in the case of an aircraft or ship the master thereof, may within 3 months of the date of the seizure or of the date of any written notice of seizure, as the case may be, by notice in writing to the Comptroller claim the goods.

(2) If no claim is made within such period of 3 months in accordance with the provisions of subsection (1), the goods are deemed to have been condemned.(emphasis added)

20. The first Notice of Seizure, in terms of the Customs Act, was dated 6th May, 2014 and following goods were included in it.

a.	97 cartons of Scotch Whiskey 12X 700 ml

b.	29 cartons of Black LableJohnie Walker 1X 1000 ml + 10 bottles of the same

c.	13 cartons (Red Lable) Johnie Walker 12X 700 ml

d.	1 carton (Green Lable) Johnier Walker 12X 1000 ml

e.	11 cartons (Teachers Blend Highlander Scoth Whisky 12X700 ml

f.	653 cartons + 20 canes (Woodstock 4 cans)six pack 24 X 440 ml

g.	179,740 pcs blank DVD’s and CD’s

21. Second Notice of Seizure dated 6th March, 2014 included following 

a.	AUS $ 88,270

b.	US $ 1,550

c.	HK $ 150

d.	FJD 250

22. The third and final Notice of Seizure dated 2nd April, 2014, contained following 

a.	358 cartons Blank Discs (100 pcs per spindleX6 spindles per carton

b.	10 cartons of A4 paper 

c.	10 empty brown cartons.

23. The 2nd Plaintiff had claimed all the goods (including currencies) contained in the said Notices of Seizure, within the stipulated time period in relation to the above 3 Notices of Seizure. Once the claim is made within the stipulated time period under the Customs Act, the Defendant had two options in terms of Section 158(1) (a) or (b) of the Customs Act. The Defendant had failed to act in terms of Section 158(1) (a) or (b) of the Customs Act. 

24. Section 158 of the Customs Act states as follows

 ‘158.-(1) If a notice of claim has been given to the Comptroller in accordance with the provisions of section 157, then the Comptroller may within a period of 2 months from the receipt of such claim, either-

(a) by notice in writing to the claimant, require the claimant to institute proceedings for the recovery of the goods within 2 months of the date of such notice; or

 (b) himself institute proceedings for the condemnation of the goods.

 (2) If the Comptroller fails within such period of 2 months either to require the claimant to institute proceedings, or himself to institute proceedings, in accordance with the provisions of subsection (1) then such goods shall be released to the claimant.

 (3) If the Comptroller, in accordance with the provisions of subsection (1), requires the claimant to institute proceedings within the period of 2 months and the claimant fails to do so, then on the expiration of such period the goods are deemed to have been condemned.’(emphasis is mine)

25. So upon the expiration of 2 months from the respective claims by the 2nd Plaintiff for the goods stated in the said Notices of Seizure, the goods stated in the Notices of Seizure should have been released to the 2nd Plaintiff, this is a mandatory provision. There is no discretion granted to the Defendant in Section 158(2) of the Customs Act, in relation to the release of the goods stated in the Notices of Seizure, as the words used are ‘shall be released’. 

26. It is mandatory for the Defendant to release the goods, upon the failure to act within 2 months in terms of the options available in Section 158(1) (a) or (b) of the Customs Act. The time period of 2 months stated in the said provision of law is the essence, as deprivation of property of a person cannot be indefinite as it affects the property rights of an individual. 

27. The purpose of the Section 158(2) of the Customs Act is to safeguard the release of goods for which Notice of Seizure issued within two months in the absence of the exercise of two options stated in Section 158(1) (a) or (b). If there is indefinite seizure of goods without taking action in terms of the said provision would lead to abuse of powers granted under the Section 129 (1) of Customs Act, and the purpose of time period is to avoid abuse and also add predictability to the process of seizure under Customs Act.

28. It is also noteworthy that Section 158(2) of Customs Act, does not state that the claimant cannot be charged for any offence, or that he is exonerated upon the expiration of 2 month time period of inaction in terms of the Secion158(1)(a) or (b) of Customs Act, but Section 158(2) only states that goods should be released. This is an important thing and release of goods does not necessarily lead to discharge or acquittal for any charges under the Customs Act.

29. This means that charges can be laid against for any violation of law, even after stipulated time period, but the goods seized should be released upon expiration of 2 months when Section 158(2) of the Customs Act applies. The Section 158(2) of the Customs Act only speaks about the release of goods and if the possession of goods are not prohibited items under the law they should be released to the claimant upon the expiration of the said time period.

30. It seemed that this fact was overlooked by the Defendant though repeated requests were made by the 2nd Plaintiff. The goods were kept with the Defendant in violation of Section 158(2) of the Customs Act. The said provision only state that the goods seized should be released to the claimant and this does not mean that the Defendant cannot institute any legal action against any violation under the Customs Act or any other law. This can be done even after the release of the goods as the evidence of the detention and or seizure and subsequent release of the goods ipso facto will not exonerate any alleged offence committed by any offender. 

31. It should also be noted there are certain items that were detained, but not included in the Notices of Seizure, for e.g. FJD FJS 7,255 contained in the Detention Notice 111357. The position regarding these items were not explained by the Defendant and no charges were laid regarding those items in the charge sheet produced (JR20 of Affidavit in support). These items should be released to the 2nd Plaintiff.

32. The custody or retention of the goods contained in the Notices of Seizure, upon the expiration of 2 months from the respective claims were unlawful as it was contrary to Section 158(2) of the Customs Act. 

33. While having unlawful custody of the items contained in the said Notices of Seizure, in contravention of the mandatory provisions contained in the Section 158(2) of Customs Act, criminal charges were framed against the 2nd Plaintiff in relation to the same items and in the affidavits in opposition state that the said items were detained for the criminal investigation.

34. At the moment the 2nd Defendant had instituted criminal action against the 2nd Plaintiff in the Magistrate’s Court of Suva and the charge sheet was served to the 2nd plaintiff and he had appeared before a Resident Magistrate though no plea was taken.

35. The said charges included all the items contained in the 1st and 3rd abovementioned Notices of Seizure. The currencies contained in the 2nd Notice of Seizure were not contained in any of the charges filed by the Comptroller of Customs, but the offence relating to 2nd Notice of Seizure, regarding the currencies seized at the Airport, was being investigated by the Police (Criminal Investigation Branch) in relation to alleged offence under Section 32 of Financial Transaction Reporting Act 2004, but there was no evidence of charge being laid against any person, in this regard.

36. The contention that all the goods ‘detained’ are subject to a criminal charge, and cannot be released for that reason ,cannot be accepted. When an enactment prevents certain thing that cannot be done indirect or roundabout means. The release of goods relating to the Notices of Seizure, by the Defendants, after the expiration of 2 months from the respective claims, was mandatory in terms of Section 158(2) of Customs Act, and this cannot be circumvented by alleged criminal investigation. If not it would amount to doing a thing that is prohibited in law in an indirect and roundabout way. This is not allowed in the interpretation of law (See Walker v Walker [1983] 3 WLR 421; Street v Mountford [1985] AC 809). Any pending investigation cannot indefinitely deprive the rights of the claimant contained in Section 158(2) of the Customs Act by alleging criminal investigation upon the expiration of 2 months’ time period.

37. Even if I am wrong, the charges before the Magistrate’s Court were relating to the Customs Act and if legislature thought it proper to prevent the release of the goods in such a scenario, it could have easily said so in Section 158(2) of the Customs Act and the absence of any such exception to the mandatory release means that they should be released.

38. The production of goods at trial is production of ‘real’ evidence and it is not a strict requirement in order to prove a ‘fact’. A fact in issue can be proved by other means eg documentary evidence, oral evidence, photographs etc. The Customs Act is specific as to the goods detained for investigative purpose when Section 158 (2) applies and release of the same upon expiration of the mandatory time period of 2 months cannot be circumvented by other means.

39. Anything taken from lawful possession of a person can be detained in terms of Section 129 of Customs Act and can be allowed remains in custody of the Defendant, only to the extent that had been expressly allowed in Customs Act and should be released upon the operation of Section 158(2) of the Customs Act.

40. The retention of property after expiration of said 2 month time period was unlawful. So using such unlawfully retained goods for a criminal prosecution cannot be accepted as a lawful excuse for retention of the property with the Defendant. I cannot see any justification by the Defendants in the two affidavits in opposition for adducing goods unlawfully kept in contravention of mandatory provisions in Section 158(2) of the Customs Act. If this is allowed, it would also be denial of the rights of a claimant, conferred in the Customs Act. The Defendant cannot profit from the unlawful custody of the items, and physical production of items in any future prosecution is tainted with the unlawful act of the Defendant. This cannot be allowed unless there is a justification for doing so.

41. In United States v. Pugliese 153 F.2d 497 (1945), Judge Learned Hand, held 

"Exclusion is the only practical way of enforcing the constitutional privilege. In earlier times the action of trespass against the offending official may have been protection enough; but that is true no longer. Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong, will that wrong be suppressed”'

 The rationale for exclusion of evidence obtained unlawfully was explained in the said United States judgment and presently in Fiji this principle is included in its Bill of Rights.

42. The Section 14(2) of the Constitution of the Republic of Fiji, contains an exclusion relating to the evidence obtained unlawfully, and states as follows

 (k) not to have unlawfully obtained evidence adduced against him or her unless the interests of justice require it to be admitted;

43. The above Section 14(2)(k) of the Constitution of the Republic of Fiji , is contained in the Bill of Rights and the following provisions in Section 6 and 7 in the Chapter 2 dealing with Bill of Rights are relevant to interpretation of the said Chapter on Bill of Rights.

6.—(1) This Chapter binds the legislative, executive and judicial branches of government at all levels, and every person performing the functions of any public office

7.—(1) In addition to complying with section 3, when interpreting and applying this Chapter, a court, tribunal or other authority—

(a) must promote the values that underlie a democratic society based on human dignity, equality and freedom; and

(b) may, if relevant, consider international law, applicable to the protection of the rights and freedoms in this Chapter.
 …….

 (5) In considering the application of this Chapter to any particular law, a court must interpret this Chapter contextually, having regard to the content and consequences of the law, including its impact upon individuals or groups of individuals

44. The Chapter 2 of the Constitution of the Republic of Fiji that deals with the Bill of Rights and it binds the three organs of the government at all levels to the implementation of it. When a court interprets the Chapter on Bill of Right in the Constitution of the Republic of Fiji it must also promote the values underline a democratic society based on human dignity, equality and freedom in terms of the Section 7(1) of the Constitution of the Republic of Fiji and the interpretation of Chapter 2 should be contextual having regard to the impact on individuals. So the rights of the persons including property rights should only be curtailed in accordance with the law and violation of Section 158(2) of Customs Act , has an impact on right of the claimant relating to the items claimed.

45. In terms of Section 14(2)(k) of Constitution of the Republic of Fiji, unlawfully ‘obtained’ evidence cannot be adduced against a person unless ‘interests of justice require it to be admitted’. In this Originating Summons application the Defendant had not unlawfully ‘obtained’ the goods when they were initially detained in terms of Section129 for investigation but the word ‘obtained’ should be given a wider interpretation to give effect to the purpose of such provision. 

46. If the evidence was obtained lawfully but subsequent retention became unlawful should that be treated differently is a question that needed an answer. What is prevented in the Section 14(2)(k) of Constitution of the Republic of Fiji is unlawful acts or deeds in breach of rights of individuals by the seizing officers, or a person in authority. In United States v. Pugliese 153 F.2d 497 (1945) Judge Learned Hand held ‘Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong, will that wrong be suppressed’. Similarly, Defendant should know that unlawful retention cannot help them in criminal action.

47. The Constitution of the Republic of Fiji expressly excludes evidence ‘obtained’ unlawfully, unless ‘interests of justice require it to be admitted”. There is no evidence that interest of justice require the retention of goods after the expiration of 2 months time period. 

48. The failure to comply with express mandatory release of the goods to the claimant make the retention of goods thereafter illegal hence the Section 14(2)(K) of the Constitution of the Republic of Fiji can be interpreted to exclude the production of the items retained unlawfully at trial , as the Defendants should not benefit from their wrongdoing, namely the violation of Section 158(2) of Customs Act. 

49. The interpretation of a Constitution is not the same as interpreting of a legislation. In the case of Minister of Home Affairs and another v Fisher and another [1979] 3 All ER 21 at 25 - 26 it was held,

 ‘Here, however, we are concerned with a Constitution, brought into force certainly by Act of the United Kingdom Parliament, the Bermuda Constitution Act 1967, but established by a self-contained document set out in Sch 2 to the Bermuda Constitution Order 1968. It can be seen that this instrument has certain special characteristics. (1) It is, particularly in Chapter I, drafted in a broad and ample style which lays down principles of width and generality. (2) Chapter I is headed 'Protection of Fundamental Rights and Freedoms of the Individual'. It is known that this chapter, as similar portions of other constitutional instruments drafted in the post-colonial period, starting with the Constitution of Nigeria, and including the constitutions of most Caribbean territories, was greatly influenced by the European Convention for the Protection of Human Rights and Fundamental Freedoms. That convention was signed and ratified by the United Kingdom and applied to dependent territories including Bermuda. It was in turn influenced by the United Nations Universal Declaration of Human Rights 1948e. These antecedents, and the form of Chapter I itself, call for a generous interpretation avoiding what has been called 'the austerity of tabulated legalism', suitable to give to individuals the full measure of the fundamental rights and freedoms referred to. (3) Section 11 of the Constitution forms part of Chapter I. It is thus to 'have effect for the purpose of affording protection to the aforesaid rights and freedoms' subject only to such limitations contained in it 'being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice … the public interest'.

 When therefore it becomes necessary to interpret 'the subsequent provisions of' Chapter I (in this case s 11) the question must inevitably be asked whether the appellants' premise, fundamental to their argument, that these provisions are to be construed in the manner and according to the rules which apply to Acts of Parliament, is sound. In their Lordships' view there are two possible answers to this. The first would be to say that, recognizing the status of the Constitution as, in effect, an Act of Parliament, there is room for interpreting it with less rigidity, and greater generosity, than other Acts, such as those which are concerned with property, or succession, or citizenship. On the particular question this would require the court to accept as a starting point the general presumption that 'child' means 'legitimate child' but to recognize that this presumption may be more easily displaced. The second would be more radical: it would be to treat a constitutional instrument such as this as sui generis, calling for principles of interpretation of its own, suitable to its character as already described, without necessary acceptance of all the presumptions that are relevant to legislation of private law.'(Footnotes deleted and emphasis added)

50. The abovementioned judgment was applied in Privy Council decision Riley and others v Attorney General of Jamaica and another [1982] 3 All ER 469

 'We have no doubt that the proper approach to the interpretation of such constitutions is as described by Lord Wilberforce when he delivered the opinion of the Judicial Committee in Minister of Home Affairs v Fisher [1979] 3 All ER 21, [1980] AC 319. He drew a distinction between Acts of Parliament concerned with specific subjects and constitutional enactments, and then considered the Bermuda Constitution.'

51. In dealing with Human Rights Act (UK), in the case of R v Lambert; R v Ali; R v Jordan [2001] 1 All ER 1014 at 1020, Woolf CJ held,

 'There is, however, a prior question to be answered before it is necessary to consider s 3. That is whether s 2 of the 1957 Act and ss 5 and 28 of the 1971 Act as applied hitherto under English law are in conflict with art 6? In answering this question it is necessary to take into account the jurisprudence of the European Court of Human Rights as required by s 2 of the 1998 Act. In doing so it is necessary to have in mind the nature of the convention as an instrument for the protection of fundamental rights. This justifies the adoption of the approach vividly described by Lord Wilberforce in relation to the provisions of a written constitution in Minister of Home Affairs v Fisher [1979] 3 All ER 21 at 26, [1980] AC 319 at 329. It involves giving a broad and purposive approach, not a rigid approach, to the language of the convention, an approach which will make the convention a valuable protection of the fundamental rights of individual members of the public as well as society as a whole.'

52. The interpretation of the sections contained in the Constitution of the Republic of Fiji should be according to the accepted rules of interpretation of a constitution and the rationale in Section 14(2)(k) Constitution of the Republic of Fiji, is to discourage violation of law for the sake of adducing evidence in a trial. In terms of the Section 14(2)(k) Constitution of the Republic of Fiji no evidence 'obtained' unlawfully can be adduced unless it can be justified. So in my judgment word 'obtained' should be interpreted widely as what is prevented is violation of law in the investigative process by Defendant, unless such unlawfully obtained evidence should be adduced in the "interest of justice".

53. There is no reason for justification as to not releasing the seized items in terms of Section 158(2) of the Customs Act. No reason was given in the affidavit in opposition or at the hearing. Even repeated letters written on behalf of the Plaintiff did not result the mandatory release of the goods stated in the Notices of Seizure, and repeated requests were ignored by the Defendant. This again had resulted delay in making this application to the court. The only reason for further detention of the goods as stated in the affidavits in opposition was that the items were required for criminal investigation. Already criminal charges were served to the 2nd Plaintiff. So, it should be presumed that investigations have concluded as regard to the items already stated in the said criminal charges.

54. In my opinion Section 14(2)(k) of the Constitution of the Republic of Fiji, prevents adducing of goods kept unlawfully in violation of Section 158(2) of the Customs Act, in the absence of any justification as stated in Section 14(2) of Constitution of the Republic of Fiji. In the interest of justice, the evidence of items kept unlawfully in contravention of Section 158(2) of the Customs Act, should be excluded rather than included in the criminal prosecution. So, the only reason stated in the affidavits in opposition, cannot be accepted, and goods should be released to the claimants.

55. I do not think that I need to labour on the issue whether this Originating Summons is adequate to provide damages. It is evident that such damages cannot be assessed in an originating summons. Such assessment cannot be done on the affidavit evidence, hence it is rejected.

CONCLUSION

56. The property belonging to the Plaintiffs were subject to detention on several occasions and Notices of Seizure were issued relating to said items seized. The Plaintiffs had claimed all the goods and currencies stated in the Notices of Seizure, but the Defendant neither exercised the options contained in Section 158(1)(a) or (b) in order to continue lawful possession of the items . Failure to exercise options contained in Section 158(1)(a) or (b) within 2 months from the respective claims should result release of the same, in term of Section 158(2) of Customs Act. So the retention of property beyond 2 months became unlawful and such unlawfully obtained items cannot be adduced for criminal prosecution in terms of section 14(2)(k) of Constitution of the Republic of Fiji. Upon the expiration of time stipulated in Section 158(2) of the Customs Act, the Defendant is obliged to release the goods subject to Notices of Seizure and the claimants' rights to obtain them were violated by wrongful refusal to release the same. The goods contained in the three Notices of Seizure along with other items subjected to detention notices should be released to the respective claimants. In order to overcome any contingency requirement that might arise from sudden release of items that are subject to criminal prosecution can be overcome by granting 14 days moratorium. The cost of this action is summarily assessed at $3,000.

FINAL ORDERS

a)	That the Defendant within 14 days from today releases to the Plaintiffs the goods and currencies seized and detained on the 6 August 2013 as set out in the Defendant's Detention Notices numbers 111354 and 111357 and Notice of Seizure dated 6 May 2014;

b)	That the Defendant within 14 days from today releases to the Plaintiffs the currencies seized and detained on 6 March 2014 as set out in the Defendant's Detention Notice number 114196 and Notice of Seizure dated 6 March 2014;

c)	That the Defendant within 14 days from today release to the Plaintiffs the goods seized and detained on 17 March 2014 as set out in the Defendant's Detention Notice number 11637 and Notice of Seizure dated 2 April 2014;

d)	That the Defendant to release to the Third Plaintiff, her Fijian Passport No. 860956;

e)	A Declaration that the Defendant's actions in refusing to release the Plaintiffs goods and currencies detained on 6 August 2013, after expiration of 2 months from the claim, is a breach of section 158(2) of the Customs Act 1986 and is unlawful;

f)	A Declaration that the Defendant's actions in refusing to release, after expiration of 2 months from the claim, the Plaintiffs currencies seized and detained on 6 March 2014 is a breach of section 158(2) of the Customs Act 1986 and is unlawful;

g)	A Declaration that the Defendant's actions in refusing, after expiration of 2 months from the claim, to release the Plaintiffs goods seized and detained on 17 March 2014 is a breach of section 158(2) of the Customs Act 1986 and is unlawful;

h)	A Declaration that the Defendant's actions of continued detention of the Fijian Passport No. 860956 of the Third Plaintiff is unlawful;

L) The cost of this action is summarily assessed at $3000.

Dated at Suva this 29th day of May, 2015

Justice Deepthi Amaratunga
High Court, Suva