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State v Prasad (No.1) [2001] FJLawRp 5; [2001] 2 FLR 35 (17 January 2001)

REPUBLIC OF FIJI & ATTORNEY-GENERAL v CHANDRIKA PRASAD (No. 1)

Court of Appeal Appellate Jurisdiction
17 January, 2001 ABU0078/00S (on appeal from HBC 217/2000S (No. 4))

Constitution – stay of execution of declarations pending appeal – logical problem as no legally coercive effect of Judgment - power of single judge - Court of Appeal Act s20; 1997 Constitution

leave to adduce affidavit evidence – paucity of evidence before the High Court - officers not available to depose until after date fixed for filing affidavits – fluid events occurring after High Court hearing - public interest - special grounds

The High Court made a number of declarations which the State (interim civilan government) appealed against. The State sought, before a single Judge, to stay the High Court declarations, which declared, among others, that the 1997 Constitution remains the supreme and extant law of Fiji, the attempted coup of May 19th 2000 was unsuccessful, the declaration of a State of Emergency by the President in the circumstances then facing the nation, is valid ab initio under the doctrine of necessity, and that the Parliament as constituted prior to the events of May 2000 still held office. The Judge discussed the logical problem inherent in the concept of staying declaratory orders, which are no more than judicial statements of the law it stated that the declarations themselves cannot be nullified, either temporarily or permanently, but may be set aside. As there was no evidence of activities or proposed conduct flowing from the judgment on which a stay order could effectively operate, the application for stay of execution was refused. The Judge next considered an application to adduce further evidence under r.22(2) of the Court of Appeal rules, and allowed evidence of matters occurring after the date of hearing on 23 August 2000 to enable the appellate Court to assess the legality of the present interim civilian administration and the extent to which it is effectively governing the country and receiving public support. The Judge considered special grounds existed, including the paucity of materials before the trial Judge, the fluid situation, events occurring after hearing which may assist the appellate Court to assess the legality of the current administration, the fact that deponents were not available at the time the trial Judge fixed a timetable for filing affidavits and overwhelming public interest. He allowed the Appellants to file affidavits of proposed deponents, with liberty to the Respondents to reply.

Held–(1) The nature of declarations themselves cannot be nullified, either temporarily or permanently, but may be set aside on appeal. The High Court’s opinion at the end of its 15 November 2000 judgment of what should happen as a result does not have any legally coercive effect. In any event, there was no evidence of activities or proposed conduct flowing from the judgment in respect of which a stay order could effectively operate.
(2) Overwhelming public interest, the paucity of affidavits before the High Court hearing, the fluid situation, the fact that the officers capable of dealing with the case had been sworn in 4 days after the date fixed for filing the Appellants’ affidavits, the proposed evidence now available to the appellate Court, and by the opportunity for the Respondent to reply to it, constitute special grounds under r.22(2) Court of Appeal Rules on which evidence of matters which occurred after the date of the High Court hearing is to be admitted in the appeal. The proposed evidence is to enable the appellate Court to assess the legality of the present administration by the extent to which it is effectively governing the country and receiving public support. The appellate Court cannot close its eyes to any relevant developments over the months following the hearing.

Application for stay refused. Leave to Appellants to file further evidence.

Case referred to in Decision

Registration Officer of the Suva City Fijian Urban Constituency v James Michael Ah Koy [1992] ABU 23/92 5 January 1994

Anthony P. Molloy, Michael Scott, Janmai J Udit & Savenaca Banuve for the appellants
Grant M. Illingworth, Anu Patel & Neel Shivam for the Respondent

17 January, 2001 DECISION

Casey, JA
On 15 November 2000 Gates J. delivered judgment in the High Court at Lautoka in favour of the Respondent in which he made a number of declarations generally to the effect that the 1997 Constitution remains the supreme law of Fiji and that the Parliament as constituted prior to the events of May 2000 still held office The Appellants have appealed against this judgment, and it is to be heard on 19 February 2001. They apply to this Court for a stay of execution of the declaratory orders made by His Lordship, who refused a similar application on 20 December 2000. They also seek leave to adduce affidavit evidence in support of their appeal: Both these applications came before me to be dealt with as a single Judge of the Court under s20 of the Court of Appeal Act (Cap 1 2) as amended in 1998.

Stay application
This can be dealt with briefly. Mr Molloy recognised the logical problems inherent in the concept of staying declaratory orders, which in this case are no more than judicial statements of the law. His Lordship’s opinion at the end of his judgment of what should happen as a result does not have any legally coercive effect. Short of setting aside the judgment (which can only be done on appeal) there is no way that the declarations themselves can be nullified, either temporarily or permanently. While there is jurisdiction to intervene against specific predictable effects of a declaratory judgment in appropriate circumstances (see Registration Officer v Ah Koy (CA 23/1992; 5 January 1994), there is in this case no evidence of activities or proposed conduct flowing from the judgment in respect of which a stay order could effectively operate. Accordingly the application for stay of execution must be refused. I am not prepared to accede to Mr Molloy’s request that I indicate that any pending litigation based on His Lordship’s judgment should be deferred until the appeal is decided. This is a matter for the parties and the Courts concerned to consider.

Leave to adduce evidence
The proposed evidence consists of thirteen affidavits by those principally concerned with the administration of Fiji islands, said to contain facts or matters arising prior and subsequent to the judgment of 15 November. Provision for the admission of further evidence is contained in Rule 22(2) of the Court of Appeal Rules as follows:

“(2) The Court of Appeal shall have full discretionary power to receive further evidence upon questions of fact, either by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner:

Provided that in the case of an appeal from a judgment after trial or hearing of any cause or matter upon the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.”

I have no doubt that evidence as to matters which have occurred after the date of hearing on 23 August 2000 should be admitted in the appeal. A major factor in assessing the legality of the present administration is said to be the extent to which it is effectively governing the country and receiving public support. This Court cannot close its eyes to any relevant developments over the months following the hearing.
In addition to this general view of the situation, there are some special features justifying the admission of further evidence of matters which arose before the hearing. It is clear from the judgment under appeal that His Lordship had problems with the paucity of the affidavits and found it necessary to take a “more generous approach” to notorious facts than might normally be appropriate. The Respondent’s summons was taken out on 30 June 2000, barely one month after the attempted coup of 19 May when events were (as described by His Lordship) “fast flowing and fluid”. On 14 July a timetable was laid down for the filing of supplementary affidavits. The Respondent complied, but the Appellants did not. Mr Molloy informed me that the interim civilian government capable of dealing effectively with the case was not sworn in until 28 July, four days after the date fixed for filing the Appellants’ affidavits, and only 25 days before the hearing on 23 August.

Instead of filing affidavits in reply, the Appellants moved to have the summons struck out on the grounds that Mr Prasad had no standing, and on 23 August they sought to have this heard first, with a view to filing affidavits in the event of a decision against them. His Lordship ruled that both matters should proceed to an immediate hearing and his judgment on 15 November he dismissed the strike – out summons, as well as making the declaration sought by Mr Prasad. In the meantime, on 19 September the Appellants sought leave from the High Court to appeal against His Lordship’s decision to hear both summonses on 23 August, and that application was refused in separate judgment delivered 15 November.

In support of the last-mentioned summons for leave to appeal, the Appellants filed an affidavit by Mr Tuilevuka sworn on 19 September 2000. In it he complained that as a result of his Lordship’s decision to proceed with both to proceed with both summonses on the same day, the Appellants were deprived of the opportunity to adduce evidence in reply. (This assertion was roundly rejected in His Lordship judgment.) He exhibited copies of affidavits filed on their behalf in action raising similar issues sworn on 14 September by the Attorney General in the Interim Military Government and by the Commander of the Fiji Military Forces respectively. They set out in abbreviated form some of the material which the Appellants now seek to adduce in evidence in considerably greater detail.

On 13 October 2000 the summons for leave to appeal was heard by his Lordship, who ruled, over the Respondents objection, that Mr Tuilevuka affidavit and exhibits would be accepted to show the Court what evidence would have been available, not to inform it on the substantive matter ( i.e. the summons for declaratory orders, still under consideration). Nevertheless, in his judgment on that matter he recorded that he had considered those affidavits in the wider national interest, notwithstanding that Mr. Prasad’s counsel had been deprived of the opportunity of addressing the Court on them.

From this account taken from High Court record it is clear that whether due to the misjudgment of Appellants’ counsel, or for reasons such as those outlined by Mr Molloy, the material available to his Lordship was nowhere as complete as that which can now be furnished by the admission proposed evidence, and by the opportunity for the Respondent to reply to it.

I need not stress the importance of this Court having as much material as possible in order to determine the appeal with its overwhelming public interest, even if it means subjecting Mr Prasad to a virtual rehearing of the case. That public interest, together with the deficiencies in the evidence which caused His Lordship such concern, constitute special grounds under the proviso to s22(2) for the admission of evidence of matters occurring before the hearing date, as well as those occurring afterwards.

Result
1. The summons for stay of execution of the declaratory orders is dismissed.

2. Leave is granted to the Appellants to adduce the affidavit evidence of the thirteen deponents referred to in para 4 of the affidavit of Nainendra Nand sworn on 10 January 2001 in support of their Motion to adduce further evidence.

3. Costs on both applications are reserved for consideration in the appeal.

Application for stay dismissed but leave granted to Appellants to file further affidavit evidence.

Marie Chan