In the High Court of Fiji
At Suva
Civil Jurisdiction

Civil Action No. HBM 128 of 2020

Pranil Sharma Investments
Applicant
v
Vodafone Fiji Ltd
Respondent
                                                        
                                         The applicant in person
                                         Counsel:  Ms S. Devan with Ms D. Ghandi for the respondent
                                         Date of Hearing   :   5th November,2021
                                         Date of Judgment:   9th March,2022

Judgment

Notice of motion seeking an “order for criminal charge”
1.	This is the third interlocutory application filed by the parties in these proceedings. 

2.	By notice of motion filed on 2nd March,2021, the applicant seeks an “order for criminal charge against the respondent for not obeying” my Order of  23rd February,2021. The applicant, in his supporting affidavit  states that the failure of the respondent to comply with my Order is contempt of court.

3.	On 23rd February,2021,  I allowed the respondent’s summons for extension of time  to file and serve affidavit in opposition. I made Order for that affidavit to be filed and served on or before 25th February,2021, the applicant to serve its reply on  or before 5th March,2021.

4.	At the hearing, the applicant said that the Bailiff left the affidavit in opposition on the floor of the Court office.

5.	I note that the affidavit in opposition was filed in the Registry on 24th February,2021. 

6.	The affidavit of service provides that the Bailiff served a true copy of the affidavit in opposition on the applicant on 26th February,2021, and the applicant refused to accept same.

7.	I am satisfied that the respondent made attempts to serve affidavit in opposition on the applicant and he declined to accept it.

8.	 In any event, failure to serve an affidavit on the due date does not give rise to the alleged charge nor contempt. 

9.	This application is an abuse of process of court. 

10.	The notice of motion is declined.

Notice of motion for constitutional redress
11.	The applicant seeks a declaration on the violation of his human rights and compensation of  one million dollars, in terms of section 11 of the Constitution based on the outcome of the investigation by the Consumer Council of Fiji,(CCF). 

12.	The supporting affidavit states that on 19th August,2020, CCF stated that it viewed the CCTV footage, which confirmed that the security had “physically mishandled the applicant out of the premises” and informed the respondent that their staff should not make physical contact with consumers, while escorting them out of their premises .

13.	The affidavit in opposition filed by Ilisapeci Salaivalu, an employee of the respondent states that on 4 April, 2020, the applicant purchased a Nokia mobile phone from the respondent for $99.00. A month later, he began to call the respondent and visited the shop on many occasions to complain regarding the network and claimed that the mobile is faulty.  He has continuously harassed the respondent’s staff, been very rude and swore at them. 

14.	On 3 August, 2020, the respondent’s Data Technician tested the mobile and found the mobile to be in good working condition. He called the Technician “you bastard”.  He demanded that his phone be replaced immediately. The security officers warned him not to swear and to make his way out of the shop immediately. The applicant made his way out himself.  The security officers are not Vodafone staff, but acted in their official capacity and carried out their duty to protect his safety and security of other customers. The respondent has video recording footages. Ilisapeci Salaivalu states further that that in his capacity as Manager, he requested the security officers to control the aggressive conduct of the applicant. He was not at any point mishandled out of the shop. He left himself and was not forcibly escorted out of the shop. He was served with a Cease-and-Desist Notice on 23 September, 2020, to stop harassing the respondent’s staff, but he continues to do so to-date. He still frequently enters the shop only to walk through one exit and out of the other side, whilst giving the staff and him warning expressions.

The determination
15.	I will in the first instance deal with the preliminary objections raised by Ms Devan, counsel for the respondent.

16.	It was submitted that the notice of motion for constitutional redress does not comply with Form 7 of the High Court Rules, as it does not include: the party to whom the application is addressed; a clear concise statement of the nature of the claim; precisely which human rights was violated; and, the relief sought.

17.	In my view, on a reading of the notice of motion and the supporting affidavit the party to whom the application is addressed, the human rights alleged to be violated and the relief sought can be deciphered.

18.	Next, issue was taken on the supporting affidavit filed.

19.	Firstly, that the affidavit does not comply with Or 41, r 1(4) and (6) in that the applicant’s occupation is not stated and paragraphs 2 and 3 are not expressed correctly.

20.	In my view, the objection is technical and of little consequence to this application.

21.	Secondly, Ms Devan submitted that the affidavit is not indorsed in terms of Or 41,r 9(2).

22.	I note that the applicant has not complied with Or 41, r 9(2) nor sought leave for non compliance.

23.	Jitoko J in Matasua Holdings Ltd v Feint Investment Ltd, HBC 0310D.2002S(2nd August,2002) stated:
At any rate the Court would be reluctant to refuse leave for the filing of affidavits.. that do not comply with procedural requirements such as those made under O.41… There is “therefore no question in my view that the Court can and has the powers to admit affidavits notwithstanding that leave had not been formally sought for non compliance with the High Court Rules.

24.	 I overrule the objections and allow the affidavit to be used.

25.	The applicant claims that there was a violation of his human rights based on section 11 of the Constitution. He alleges that the security of the respondent had physically mishandled him out of the premises

26.	Section 11 titled “Freedom from cruel and degrading treatment” provides in sub-sections (1) and (2) that every person has the right to freedom from torture of any kind and be free from any form of violence.

27.	In my view, the applicant’s remedy was to seek damages in tort for the alleged act. 

28.	As Singh J stated in  Aiyaz Ali v  The State, Civil Action no: HBM 0079 of 2004,(29th August,2005) “An isolated incident of assault is an offence under the Penal Code and may also be subject of damages in tort”. He stated further: 
	To elevate these under the evocative banner of abuse of human rights is really an abuse of process. …The applications under the Redress Rules are not a short cut or a system to by-pass existing mechanisms in law. Section 41 (of the then 1997 Constitution) is not an Aladin’s cave which contains all the remedies for all the ills and the Redress Rules the magical words “open sesame, which are keys to those remedies”.  
29.	Section 44(4) of the Constitution provides that the Court may in its discretion decline to grant relief, if it considers that “an adequate alternative remedy is available”.

30.	In Abhay Kumar Singh v D. P. P. and the Attorney General, 2004 FLR 297 at pg  306 the Court stated:
 We note that the privy council has constantly laid down that where an adequate alternate remedy is available then constitutional redress will be refused. It has regarded an application for constitutional relief in these circumstances as an abuse of process and as being subversive of the rule of Law which the Constitution is designed to uphold and protect.

31.	In In the matter of an application for constitutional redress by Josefa Nata, ((Civil Action no. HBM 35 OF 2005) Singh J declared:

..the Constitution provides that a Court may refuse to grant relief if “adequate alternative remedy is available to the person concerned". The Redress Rules do not provide for a parallel procedure to be invoked where alternative remedy is available. To use the Constitutional Redress process as a substitute for normal procedure is to devalue the utility of this Constitutional remedy. Mere allegation of constitutional breach was insufficient to invoke this remedy — Harrikissoon v. Attorney General — 1979 3 WLR 62.(emphasis added)

32.	In my judgment, the application for constitutional relief is inappropriate and an abuse of process of Court. 

33.	 I note that the video recording of what transpired at the respondent’s  shop on  3 August, 2020, depicted that the applicant was not mishandled and showed the applicant walking out of the respondents’ shop. The recording was played in Court.  The applicant did not dispute the recording.

34.	The applicant’s notice of motion for constitutional redress is declined.

35.	Orders
(a)	The applicant’s notice of motion seeking an “order for criminal charge against the respondent ” is declined 
(b)	The applicant’s notice of motion for constitutional redress is declined.
(c)	The applicant shall pay the respondent costs summarily assessed in a sum of $ 1000.

A.L.B. Brito-Mutunayagam 
                                                                   JUDGE
9th March, 2022