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Prasad v State (No.6) [2001] FJLawRp 6; [2001] 2 FLR 39 (17 January 2001)

CHANDRIKA PRASAD v REPUBLIC OF FIJI & ATTORNEY-GENERAL (No. 6)

High Court Civil Jurisdiction
17 January, 2001 HBC 0217/00L

Practice and procedure – joinder of party – affidavit devoid of facts to prove nexus between the proposed Interested Party and the judgment – standard of evidence required - High Court Rules O.15 r.6(2)(b)(i), O.15 r.6(3), Court of Appeal Act s13, Court of Appeal Rules r.7 – 1997 Constitution

Practice and procedure – defects in form of affidavit – test of admissibility of evidence applicable to interlocutory proceedings – disregard of passages in the proposed Interested Party's affidavits which fail to state the sources and grounds for information or belief, are irrelevant, argumentative and unfactual – conflicting affidavit evidence cannot be resolved High Court Rules O.38 r.2(3), O.41 r. 5(1), O.41 r.9(2), O.59

A proposed interested Judge sought to join a High Court action in order to petition the Court of Appeal to delete 5 pages of obiter dicta contained in a High Court judgment, which the proposed Interested Party claimed were written without according him due process of law. The Plaintiff opposed the application to join, on the grounds that such addition was necessary to ensure that all matters in dispute could be effectually and completely determined and adjudicated upon. The Court first commented on defects in indorsement of the affidavit, but granted the necessary leave for all 3 affidavits to be used in evidence in these proceedings. The Court, which also constituted the same Court in which the impugned judgment was delivered, discussed the requirements for joinder under O.15 r.6 of the High Court Rules. It discussed whether the application for joinder was interlocutory or to be treated as final, and found the judgment appealed from to be final, but found that the proposed Interested Party failed to depose to facts establishing a nexus between him and the High Court action, to the lower standard required by the High Court Rules. The Court found there were no other facts put forward which might demonstrate that the impugned facts are demonstrably false. The Court commented that the obiter dicta passages failed to identify any of the 3 judges named, nor needed to, and explained its intent was the role of the judiciary in respect of extra-constitutionality. The Court found that the nexus, if one existed, was provided by the original applicant's affidavit annexing 3 letters, one of which was the proposed Interested Party's own admissions to the Fiji Law Society. The proposed Interested Party had taken it upon himself to bring the proceedings. In any event, the proposed Interested Party had not applied for the required leave to appeal from a final judgment, thus leave was refused. The Court concluded that even if leave was applied for, it would have been refused on the basis that the proposed Interested Party was not prejudicially affected by the order made; in short, his issues in dispute are not transcended, in public importance, over personal interests. The Court made some observations about the propriety of the proposed Interested Party's counsel's visit before a single Judge of the Court of Appeal to withdraw his appeal, when no application for leave to appeal had been made before the High Court, which is seized of the matter. It referred the matter to the Acting Registrar of the Court of Appeal.

Held – (1) The High Court has narrow jurisdiction to join additional parties. It is necessary for a proposed litigant to depose in his affidavit, firstly, as to the nexus between himself and the matters in dispute in the action, and secondly, the remedy the litigant seeks from the court after joinder has been allowed.

(2) Where there is urgency, the Court may relax the rules of evidence, but such urgency is not shown here. Exercising caution, the Court will accept the lower threshold test of evidence of 'statements of information or belief with the sources and grounds thereof' pursuant to O.41 r.5(2). Passages in the proposed Interested Party's affidavits which do not comply, since they fail to state the sources and grounds for information or belief, are irrelevant, argumentative and unfactual, will have to be deleted and disregarded.

(3) Leave to appeal from a final judgment is necessary by a person who is not a party to the proceedings, and no application was made here, but even if one were made, it would have been denied on the ground that the proposed Interested Party was not prejudiced or aggrieved by the declaration made.

Sukh Deo Prasad & Anor. v Attorney-General [1997] ABU0029/97 13 August 1997 appl.

Other cases referred to in Judgment

Chandrika Prasad v Republic of Fiji & Attorney-General (No. 4) (2000) 2 FLR 89

Deutsche Rückversicherung A.G. v Walbrook Insurance Co. Ltd. & Others [1995] 1 WLR 1017

Fiji Medical Association v Ramon Fermin Angco and the Fiji Medical Council [1997] ABU0041/97S 7 November 1997

Gilbert v Endean 9 Ch. D 259

Gleeson v J. Wippell & Co. Ltd. [1977] 1 WLR 510

In re J.L. Young Manufacturing Co. Ltd. [1900] UKLawRpCh 177; [1900] 2 Ch. 753

In re Kim Industries Ltd. (No. 1) (2000) 1141

In re New Brunswick Electric Power Commission and Local Union No. 1733 (1976) 73 D.L.R (3d) 94 Lumley v Osborne [1901] UKLawRpKQB 26; [1901] 1 QB 532

Performing Right Society Ltd. Ltd. v London Theatre of Varieties Ltd. [1924] AC 1

Petitions challenging the Provisional Constitutional Order and Proclamation of Emergency Supreme Court of Pakistan 2000 (http://www.radio.gov.pk/SCJ.html)

Savings and Investment Bank Ltd. v Gasco Investments (Netherlands) BV & Others (No.2) [1988] 1 Ch. 422

State v H.E. The President and 4 Others ex parte I.I.A. Khan (2000) 1 FLR 241

Anu Patel for the Applicant

Janmai J. Udit for the First and Second Respondents

Franz G. Keil with Shailendra Krishna for the proposed Interested Party, Michael Dishington Scott

17 February, 2001 RULING (on Joinder)

Gates, J
This is an unusual application. It is made by Mr. Justice Scott of the Fiji High Court. He believes certain comments in the main judgment in this case given on 15th November 2000 identified and referred to, amongst others, himself. He seeks therefore to be joined after judgment as a party in the matter. He argues that such comments should never have been made. He proposes therefore to ask the Court of Appeal to delete pages 29-34 of the judgment.

Accordingly Judge Scott [the proposed Interested Party] through solicitors filed a summons dated 23 November 2000 which he supported by an affidavit which he himself swore on 22 November 2000 and which was filed on 23 November 2000. Later he deposed to a supplementary affidavit in support which was sworn on 24 November 2000 and duly filed on 27 November 2000.

The summons itself makes no mention of the grounds upon which it is sought to seek amendment of the originating summons dated 30 June 2000, the summons that commenced these proceedings, nor of the High Court rule pursuant to which this application is being made. At the hearing Mr. Keil stated in answer to my query that he sought joinder under Order 15 rule 6(2)(b)(i) and the inherent jurisdiction of the High Court. He also referred to Order 59 as providing necessary jurisdiction for the Court of Appeal to add a party.

Order 59 of the Fiji High Court Rules is one of those rules which remain unallocated. So in Fiji there is no Order 59. I have no doubt however, following the English practice, which practice is to be applied, by virtue of Rule 7 of the Court of Appeal Rules Cap. 12 whenever the Fiji rules are silent, that the Court of Appeal does have power to join additional parties albeit within a narrow jurisdiction [see also section 13 Court of Appeal Act Cap. 12; and Performing Right Society Ltd. v London Theatre of Varieties Ltd. [1924] AC 1].

This application is opposed by counsel for the original applicant Chandrika Prasad. Counsel for the 1st and 2nd Respondents informs me that the State remains neutral in the matter.

The Affidavits: Formal Defects

The original applicant Chandrika Prasad filed an affidavit in opposition which was sworn and filed on 1st December 2000. Both this and the two affidavits filed for the proposed Interested Party lacked the mandatory indorsement of Order 41 r. 9(2). Subsequent to the filing of these affidavits I dealt in these proceedings with this kind of deficiency, see Chandrika Prasad v Republic of Fiji (unreported) Lautoka High Court Action No. HBC0217/2000L 20 December 2000 [Respondents' summons for stay pending Appeal (No.2)]. It is a deficiency previously referred to in Gleeson v J. Wippell & Co. Ltd. [1977] 1 WLR 510 at 519C per Megarry VC.; and I have had recourse to deal with similar deficiencies last year, see In the Matter of Kim Industries Ltd. (unreported) Lautoka High Court Winding Up No. HBF0036/99L 7 July 2000 (the preliminary ruling): The State v H.E. The President of Fiji & Others ex parte I.I.A. Khan (unreported) No. HBJ007/2000L 12 October 2000 (a ruling on transfer). It is counsel's duty to ensure that affidavits filed on behalf of their clients comply with the Rules. Fortunately, Order 41 r. 9(2) is not an onerous rule and should present no difficulty for counsel. It is to be emphasized that it is a mandatory rule, and in matters of form it is to be complied with. However I grant the necessary leave pursuant to Order 41 rule 4 for all 3 affidavits to be used in evidence in these proceedings.

The Affidavits: Sufficiency of, and Admissibility of, the Material

The application to be joined as proposed Interested Party is made pursuant to Order 15 rule 6 which provides:

"Order 15

r. 6

(2) Subject to the provisions of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application –

(b) order any of the following persons to be added as a party, namely –

(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon,"

In applying to the court for joinder as a party to the litigation, it is necessary for the proposed litigant to depose in his affidavit first as to the nexus between himself and the matters in dispute in the action. Second, he needs to state the remedy he seeks from the court after joinder has been allowed, in effect to state the purpose for being joined.

In the final paragraph of his affidavit of 22 November the proposed Interested Party deposes:

"12. If granted leave to be added as a party I intend to appeal against the Judgment to the Court of Appeal. I intend only to seek an order deleting those passages in pages 29 to 34 of the Judgment now complained of. I intend to submit to the Court of Appeal that the Court had no warrant or jurisdiction to judge me in the way that it has and that by doing so it abused the process and immunity of the Court, breached fundamental rules of natural justice and denied me due process of law. (my underlining)

The proposed Interested Party denies that he was accorded due process of law, by which it is to be inferred, that he is saying he was adjudged without being heard. But through his counsel at the hearing, the proposed Interested Party put forward the somewhat conflicting arguments:

1. "We are saying the facts [the proposed Interested Party's role in the matter as set out in the judgment] are untrue," and

2. "My client does not want an opportunity to refute the allegations."

However at paragraph 11 of this affidavit the proposed Interested Party did say that he had had "no opportunity to refute them." The unwillingness to refute the facts or the allegations made of the proposed Interested Party may also explain the paucity of evidence deposed to by him as to his involvement in any of this matter. I shall revert to this aspect later.

Order 15 r. 6(3) sets out what the affidavit in support must provide:

"(3) An application by any person for an order under paragraph (2) adding him as a party must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute or, as the case may be, the question or issue to be determined as between him and any party to the cause or matter."

The contents of affidavits is governed by Order 41 rule 5 which states:

"5 – (1) Subject to Order 14, rules 2(2) and 4(2), to Order 86, rule 2(1) to paragraph (2) of this rule and to any order made under Order 38, rule 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove.

(2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof."

The main proceedings in this case are by way of originating summons in which the evidence has been adduced, as is usual in such proceedings pursuant to Order 38 r. 2(3), by way of affidavits. Therefore it would appear to be necessary that any affidavit evidence adduced for the trial of the action should comply with Ord. 41 r. 5(1). In order to ground jurisdiction for the court to permit joinder, after trial of this matter, the proposed litigant must file an affidavit in support which "may contain only such facts as the deponent is able of his own knowledge to prove."

In paragraph 6 of his affidavit of 22 November 2000, the proposed Interested Party stated:

"The ensuing seven numbered paragraphs of the Judgment set out on pages 32, 33 and 34 of the Judgment amount to a severe criticism of "3 Judges of the High Court" which phrase could be taken to refer to any of 7 other High Court Judges but which I believe is intended to refer to the Chief Justice, the Honourable Sir T.U. Tuivaga, to the Honourable Mr. Justice D.V. Fatiaki and to myself."

And at paragraph 11 he deposed:

"I reject the criticisms made of me. They contain or are predicated upon hearsay and numerous factual assumptions which are demonstrably false.

I was given no notice of the Court's intention to make these criticisms and no opportunity to refute them."

With the exception of the sentence "I was given no notice of the court's intention to make these criticisms and no opportunity to refute them," the above-mentioned 2 paragraphs taken from the proposed Interested Party's affidavit are devoid of the necessary facts which of his own knowledge the deponent can (or might) prove. There are no facts deposed to in accordance with Order 41 rule 5 establishing any nexus between the proposed Interested Party and the judgment such that joinder might be ordered. Even if this were approached on the basis that it was an interlocutory application only, it is apparent that the evidence fails to meet the less arduous standard required by Order 41 r.5(2). None of the statements of information or belief as required state the sources or grounds thereof for the court to allow in otherwise impermissible hearsay. These are well known rules of long standing.

In the case of In re J.L. Young Manufacturing Co. Ltd. [1900] UKLawRpCh 177; [1900] 2 Ch. 753 Lord Alverstone C.J. at 754 had this to say:

"This case is one of general importance as regards the practice of the admissibility of evidence by affidavit. In my opinion some of the affidavits in this case are wholly worthless and not to be relied upon. I notice that in several instances the deponents make statements on their "information and belief," without saying what their source of information and belief is, and in many respects what they so state is not confirmed in any way. In my opinion so-called evidence on "information and belief" ought not to be looked at at all, not only unless the Court can ascertain the source of the information and belief, but also unless the deponent's statement is corroborated by some one who speaks from his own knowledge. If such affidavits are made in future, it is as well that it should be understood that they are worthless and ought not to be received as evidence in any shape whatever; and as soon as affidavits are drawn so as to avoid matters that are not evidence, the better it will be for the administration of justice." (my underlining)

Rigby LJ added at 755:

"The point is a very important one indeed. I frequently find affidavits stuffed with irregular matter of this sort. I have protested against the practice again and again, but no alteration takes place. The truth is that the drawer of the affidavit thinks he can obtain some improper advantage by putting in a statement on information and belief, and he rests his case upon that. I never pay the slightest attention myself to affidavits of that kind, whether they be used on interlocutory applications or on final ones, because the rule is perfectly general – that, when a deponent makes a statement on his information and belief, he must state the ground of that information and belief."

In Lumley v Osborne [1901] UKLawRpKQB 26; [1901] 1 QB 532 the Plaintiff had succeeded in obtaining an order of a county court judge committing the Appellant to prison under the Debtors Act. The Appellant resisted the jurisdiction to do so, successfully, on the basis that the evidence of the fact that the Appellant was a partner was not placed before the court in the correct form and to the required standard. This was no mere technical defect. The purpose for it went to the root of the matter. Wills J. at 535 said:

"But I am of opinion that the procedure was not correctly followed. Order xxv r.14(b), says that the person seeking to enforce the judgment against an alleged partner shall file an affidavit in the form in the Appendix – Form 52 (c) – and according to that form he is to "state the sources of information and grounds of belief" that the person against whom the summons is sought was a partner in the firm. It seems to me that that is a material and essential part of the form, the object being that the person alleged to be a partner shall be given notice of the case that he has to meet and have an opportunity of producing witnesses to rebut it. In the present instance the affidavit was defective in that it did not state the Plaintiff's sources of information and grounds of belief, and the issue of the judgment summons was consequently irregular. That irregularity not having been waived, the judge had no jurisdiction to make the order which is complained of." (my underlining)

Of course the courts will act on less than satisfactory evidence when the gravity and urgency of the matter demand it. Applications for interlocutory injunctions can sometimes prove to be such matters. The committal proceedings for contempt in the court below to prevent the disposal of £7 million of remaining assets of a foreign company in England in breach of an undertaking in Savings and Investment Bank Ltd. v Gasco Investments (Netherlands) BV & Others (No.2) [1988] 1 Ch 422 were held to be such an occasion; leniency was extended also in Deutsche Rückversicherung A.G. v Walbrook Insurance Co. Ltd. & Others [1995] 1 WLR 1017 where the affidavits referred to a Department of Trade and Industry Report without identifying the original source of evidence for statements in the Report in an urgent interlocutory application for injunction. The court refused to strike out the references to the Department of Trade and Industry Report as the source of the deponent's information and belief. The court also refused the injunctions sought, though this was founded on a reluctance to place a clog on international commerce and letters of credit.

Which standard of evidence is required here? Is the application for joinder interlocutory or by virtue of the originating summons and later joinder at the appellate stage to be treated as final?

In Savings & Investment Bank (supra at 429C) Purchas LJ said:

"The test whether the proceedings are interlocutory or final must relate to the proceedings themselves and not to the relief sought or the order made in those proceedings."

In Gilbert v Endean 9 Ch. D 259 at 268 Cotton LJ said:

"Now many of the cases which are brought before the court on motions and on petitions, and which are therefore interlocutory in form, are not interlocutory within the meaning of that rule as regards evidence. They are to decide the rights of the parties, and whatever the form may be in which such questions are brought before the court, in my opinion the evidence must be regulated by the ordinary rules, and must be such as would be admissible at the hearing of the cause."

At 266 Jessel M.R. said:

"Here I must say that in my opinion a charge of misrepresentation or concealment ought not to be supported by affidavits on information and belief."

The same could be said of issues such as identification. In order to be heard an applicant, not obviously a party to the dispute must first establish that he is correctly identified as a person aggrieved by the judgment with a proper nexus with the action such that a court of appeal could consider his application for deletion of several pages of a judgment.

In the Canadian case of In re New Brunswick Electric Power Commission and Local Union No. 1733 (1976) 73 D.L.R (3d) 94 Hughes CJ said at 97:

"I agree with Counsel's submission that an application to commit for contempt of court is not an interlocutory motion to which Ord. 38 r. 3 of the Rules of the Supreme Court applies, and consequently statements contained in affidavits based solely on information and belief cannot be used or relied upon to support the conviction for contempt: see Gilbert v Endean... I do not agree, however, with counsel's submission that an affidavit which contains some facts within the deponent's personal knowledge must be wholly rejected because it contains other facts based solely on information and belief. Where such an affidavit is tendered the court has a complete discretion to decide whether the affidavit should be rejected or whether only the inadmissible portions thereof should be struck out."

Purchas LJ could not support Hughes CJ's opinion that an application to commit was not interlocutory.

Nor were other members of the Court of Appeal in Savings & Investment Bank prepared to say committal proceedings were final. Sometimes leave to issue committal proceedings might involve a matter of magnitude and great urgency requiring the grant of leave without full and direct evidence. The court might have to exercise its discretion to admit such evidence. Purchas LJ at 436C said:

"The danger of admitting hearsay evidence in the case of some interlocutory motions may be avoided by the exercise by the court of its discretion to exclude it; and its admission in others may be very much in the interests of justice."

Earlier at 429 his lordship had said:

"There are, therefore, ample residual powers in the court to exclude any particular part or parts of any affidavit evidence which might otherwise be admissible under Ord. 41 r. 5(2) and, of course, ultimately it is for the court to determine what weight should be attached to any particular piece of hearsay evidence."

What is clear in these matters however is that where the need for urgency, or what Jessel M.R. in Gilbert v Endean (supra at 266) had called "intolerable mischief" are not present there is no basis for relaxing the rules of evidence. But imperfect evidence for interlocutory purposes will only suffice for interlocutory applications. "The court has no right to act upon it" said Jessel M.R. at 267, "in finally adjudicating upon the rights of parties."

I am inclined to conclude that the proposed Interested Party's affidavit should "contain only such facts as the deponent is able of his own knowledge to prove", on the relevant issue of identification, irrespective of whether the proceedings are regarded as final or interlocutory [Ord. 41 r. 5(1)]. However as a matter of caution here, I am prepared to accept the lesser threshold test applicable for interlocutory proceedings of "statements of information or belief with the sources and grounds thereof." [Ord. 41 r. 5(2)]. Passages in the proposed Interested Party's affidavits therefore which do not comply with the rules of evidence since they fail to state the sources and grounds for information or belief, will have to be deleted and disregarded.

Finally the proposed litigant's affidavit of 22 November 2000 is made up of a combination of extracts or summaries repeating parts of the main judgment (not those complained of) and of submissions on the facts and the law. The inclusion of submissions on the law in an affidavit was referred to by Megarry V.C. in Gleeson's case (supra at 519D) as "undesirable features that I think ought not to be allowed to pass unchecked." The affidavit there had exhibited a passage from the legal opinion of a silk and also exhibited an article in a journal concerned with patents. His Lordship at 519E said:

"The main objection to the extracts from the article is that they do not appear to me to constitute any evidence; and the purpose of affidavits is, or should be, to provide evidence."

In The Registration Officer for the Suva City Fijian Urban Constituency v James Michael Ah Koy (unreported) Court of Appeal Civil App. No. 23 of 1992 5 January 1994, Taniela Tabu applied to the Court of Appeal for a stay of the Court of Appeal proceedings and asked to be joined as an aggrieved person as also the then Supervisor of Elections.

Sir Moti Tikaram, then Acting President of the Court at 5 said:

"Mr. Tabu is obviously aggrieved that his decision has been upset by the Fiji Court of Appeal. But he is no longer a party to these proceedings. He does not say that the Applicant has authorized him to file his affidavit. Nor does he say on whose behalf he has filed the affidavit. In an obvious endeavour to justify his decision he has delved into legal arguments and also into his thought processes as to how he came to reach the decision he did as the Registration Officer at the material time.

Bearing in mind that Mr. Tabu is not a party to these proceedings a substantial part of his affidavit is, in my view, either irrelevant, inappropriate or objectionable. I, therefore, propose to ignore all those paragraphs dealing with legal arguments, his thought processes and his attacks on the Supervisor of Elections. Indeed I order paragraphs Nos. 11, 12, 13 and 15 all of which in one way or other question Mr. Apted's integrity, to be struck out. I shall, however, take cognizance of only those parts which are factual in nature and at the same time relevant to these proceedings."

The proposed Interested Party has his counsel who is the appropriate conduit for the presentation of legal argument. It is not permissible to use affidavits in support as an occasion to argue the facts or the law. Affidavits are vehicles for the succinct presentation of facts as evidence to the court. I have to ignore therefore all those paragraphs which are irrelevant, argumentative, or unfactual. On this ground I disallow in the proposed Interested Party's 1st affidavit paragraphs 3, 4, 5, 7, 8, 9, 10, and the first 2 sentences of paragraph 11 which said:

"I reject the criticisms of me. They contain or are predicated upon hearsay and numerous factual assumptions which are demonstrably false."

Unfortunately no facts are contained in these two sentences, and no facts have been demonstrated to be false by the putting forward of other facts which the deponent might have asked the court to have accepted or considered in substitution for those complained of. Nor is it stated exactly or at all what facts are complained of as being untrue. Paragraphs 4 and 5 of the proposed Interested Party's supplementary affidavit are also to be disregarded for being similarly argumentative and unfactual.

The nexus of the proposed Interested Party
From the proposed Interested Party's material put up to the court there is no nexus shown. He says nothing of his role or lack of it in the judiciary's participation in decree making, or advice to the President or advice to the Military. In his supplementary affidavit, the proposed Interested Party exhibited a copy of a letter dated 23 November 2000 from the Chairman of the N.G.O. Coalition on Human Rights concerning a complaint to the President addressed to the Chairman of the Judicial & Legal Services Commission regarding 3 named judges, one of whom is named as the proposed Interested Party. In turn it attaches a letter dated 20 November 2000 headed "Alleged Misconduct of the Hon. Chief Justice". This attachment is addressed to the President at Government House. It opens:

"The N.G.O. Coalition on Human Rights is concerned about the preservation of the independence and integrity of Fiji's Judicial system. This is best served when Judges concentrate on dispensing justice and avoid activities which undermine their standing. This latter aspect is especially worrying at this time of crisis when the Judiciary ought to be the strongest and last bastion for the upholding of the rule of law."

At paragraph 5 still dealing with complaints against the Chief Justice it states:

"It is also known that in respect of matters mentioned at paragraphs 1 and 2 above the Chief Justice acted in concert with Justices Michael Scott and Daniel Fatiaki."

This information is put forward as establishing, according to Mr. Keil, the identity of the proposed Interested Party. It does of course no such thing, and I have rehearsed the reasons for that already in discussing the affidavit material. At this stage without the proposed Interested Party's evidence the application is reliant solely on unsourced gossip.

However on 1st December 2000 the original applicant filed an affidavit in opposition to joinder. He stated that he did not contemplate or wish to have Mr. Justice Scott added as a party, nor did he consider such addition was necessary to ensure that all matters in dispute could be effectually and completely determined and adjudicated upon. He also exhibited 3 letters. This was an exchange of correspondence between the then President of the Fiji Law Society to the Chief Justice copied to all the judges [9th June 2000]; the Chief Justice's reply [14th June 2000]; and the unsolicited reply of the proposed Interested Party [14 June 2000]. I set out those letters in full:

9th June 2000

Hon. Sir Timoci Tuivaga

Chief Justice

High Court of Fiji

Government Buildings Suva

"We refer to our meeting of yesterday and would like to thank you for the opportunity to put our representations to you in writing to enable the judiciary of the High Court of Fiji to reconsider the position it has taken so far in respect of the events of 19th May and thereafter.

Whilst we appreciate that the Judiciary has not accepted that the 1997 Constitution is abrogated, we must highlight to the Judiciary at the strongest of terms that this impression is not being conveyed to the legal profession nor for that matter to the public at large. In fact we take the strong view that the involvement of the Judiciary in helping the military draft the decree for the administration of justice is inconsistent with the position that the 1997 Constitution has not been abrogated or removed. Furthermore, the obliging manner in which the Judiciary has taken on the role to draft the decree is unbecoming of the high office of a judge. It is not the function of the Judiciary to exercise legislative powers whatever the circumstances unless authorized by Parliament. In our view the Judiciary has failed in its oath to uphold the 1997 Constitution if it were to be judged by its conduct thus far.

Whilst the executive and the legislative arms of the 1997 Constitution have been rendered ineffective, the judicial arm has remained untouched and thus must be used for the ultimate role of upholding the 1997 Constitution. The legal profession and the public have no other legitimate authority to look up to uphold the 1997 Constitution and would therefore expect the Judiciary to demonstrate in no uncertain terms that it is doing just that.

On 19th May and thereafter the legislature, despite being overpowered by force, and with much sacrifice refused to accept that the 1997 Constitution had been abrogated or removed. The executive has demonstrated the same commitment to uphold the 1997 Constitution and this was demonstrated through one of its officers making the ultimate sacrifice through losing his own life. Nothing less can be expected of the Judiciary.

The Judiciary's argument that it is choosing between the lesser of two evils is without foundation because the Judiciary knows that the 1997 Constitution has not been abrogated nor removed and the Judiciary is still functioning.

We therefore request the Judiciary to reconsider its position by making a clear and unequivocal statement that it maintains the continued existence of the 1997 Constitution. The Judiciary should immediately disassociate itself from all the decrees already passed, including in particular the Administration of Justice Decree. The eyes of the profession, the nation and the world are upon the Judiciary. It can not be seen to openly condone criminal activity. It should state as a matter of record that it will continue to occupy and function in its Judicial role in the same uncompromising manner as it had done prior to 19th May.

Until some final resolution is attained in the crisis which besets it, we expect the Judiciary, being the last surviving arm of democracy to fulfill its functions in upholding the 1997 Constitution which is the only certain and legal position that it can take in this climate of uncertainty. We therefore implore all the judges of the High Court of Fiji to remain in the office they have been given charge of pursuant to the 1997 Constitution and not to resign and not to swear any new oath of allegiance. That is the only way to maintain the credibility and integrity of the Judiciary and to set a proper example to follow for the present and future generations of the Bar and the Bench. Otherwise history will treat the present judges most unkindly. Any lesser conduct is equally as treacherous as the conduct of the original perpetrators of the events of 19th May 2000.

For you Chief Justice we echo the words of Tennyson who described the knights (of whom you are one) as:

'...that fair Order of my Table Round,

A glorious company, the flower of men,

To serve as model for the mighty world,

To ride abroad redressing human wrongs,

To speak no slander, no, nor listen to it'

And so to live as to be inspired to

'Teach high thought, and amiable words,

And courtliness, and the desire of fame,

And love of truth, and all that makes a man'.

We shall be pleased to receive your immediate response. To assist you a copy of this letter is being circulated to the other judges.

God Help the Republic of Fiji

COUNCIL OF THE FIJI LAW SOCIETY

Yours faithfully

Peter Knight

President Fiji Law Society"

Mr. Peter Knight

President

Fiji Law Society

98-100 Renwick Road

SUVA

Dear Sir,

"I acknowledge your letter of 9 June 2000.

I regret I am unable to agree with your heavily critical perceptions of my role as Chief Justice in the handling of the grave political and constitutional crisis which has beset the country since 19 May 2000. The situation was triggered by the state of insurrection in the country which so far has proved insidiously intractable.

What is probably beyond argument is that the interim administration of the military authorities is for all practical purposes and in the absence of any viable alternative the de facto government of Fiji right now and ever since the President of the Republic of Fiji "stepped down or stepped aside" from his high constitutional office on 29 May 2000. The Vice-President who under normal circumstances would have acted as President had not moved in to fill the lacuna. A functioning President or Acting President is important to the Judiciary as his responsibilities also touch on the appointment and discipline of judges.

It is a fact that the military government has purported to have wholly removed the 1997 Constitution. For obvious reasons it is not possible at this time for the Judiciary either as individual members or as a body to make any definitive statement upon the juridical issue as critical events and shifting political scenarios continue to unfold to confound the nation. Such scrutiny of legal issues pertaining to the Constitution can only be undertaken when conditions become stabilised and of that your guesses and speculations are as good as anybody else's.

The fifty-dollar question is how the political and constitutional conundrum facing the country may be resolved factually and legally as a matter of political reality.

There is no argument that the 1997 Constitution is the supreme law of the land. No one doubts that for one moment. It is for that very reason the Constitution cannot be altered except under the prescriptions contained in Chapter 15 of the Constitution. But what do you do when circumstances conspire as they have done and are doing to emasculate the Constitution to utter helplessness. It would be a hollow statement indeed if the Judiciary were to go public on the assertion that the 1997 Constitution is still in force and continues to rule the country when the hard truth is that we have no constitutionally elected cabinet government nor have we any constitutionally appointed President around to run the country in accordance with the Constitution. Besides there is no guarantee in the horizon that the pre-May 19 state of affairs will be restored in situ.

While a de facto government is in place it is impossible for me as Chief Justice not to acknowledge its actual existence as a matter of political reality. It is also impossible for me not to take notice of the de facto government's publicly expressed desire of maintaining law and order in the country. It is in this respect and this respect alone that I as Chief Justice took the opportunity that had presented itself to ensure that the Administration of Justice Decree of the military government took cognisance of the freedom and independence of the courts to maintain a system of law and order and justice in the country. My predominant concern was not to render assistance as such to the de facto government but to ensure that the maintenance of law and order and justice in this country was not to be frustrated by any ineffective administrative court machinery that could easily have resulted otherwise without my intervention. I considered such intervention on my part as absolutely necessary if the court system were to function properly in preserving law and order and avoiding chaos and confusion within the fabric of our society. In any event and by all appearances this particular decree far from being contra-1997 Constitution is substantially consonant with it. The only departure of note therefrom relates to the restructuring of the court system at the appellate level. It was done because of the vastly changed conditions within the Judiciary and the need to maintain a functional and easily manageable appeal process system for the country.

The particular way in which I handled the important subject of judicial administration was necessitated by the fact that the 1997 Constitution has been rendered ineffective as a result of the Prime Minister and cabinet ministers having been taken prisoners and held captive as political hostages, a most tragic state of affairs whose resolution is beyond the scope of the powers of the courts. And as has already been noted there is also the serious lacuna when the country is without a constitutional President.

You will probably gather from all that has been said that my approach to the constitutional problem facing the country is based on my own perception that the 1997 Constitution has been unable to provide any solution to the current political and constitutional morass in the country. This is a pragmatic approach to the constitutionally discommoding situation that has arisen for all lawyers in the country, including judges and magistrates.

I must emphasise that this response to your letter represents my own particular views and not those of other judges or the Judiciary as a body. I take full responsibility for the way I have reacted and responded to the political and constitutional impact of the present crisis on the Judiciary. If the Law Society honestly think and on this I would like some indication that in my approach to the current crisis I have grievously compromised the integrity and credibility of the judicial system of the Republic of Fiji, I am quite prepared to consider whether I ought to continue in the judicial service of the country.

Yours faithfully

Chief Justice"

"Dear Sir,

I acknowledge receipt of a copy of your letter addressed to the Hon. Chief Justice dated 9 June. I have also received a copy of his reply to you dated 14 June.

For my part I consider your letter to be a deeply hurtful, wholly unhelpful and quite unwarranted general personal attack on the Chief Justice and the High Court Judges. It is noted that you have made no mention of the FCA or Supreme Court.

From the outset of this crisis we made every effort to offer advice and guidance with the aim of containing events within the Constitution but when the Military acted unilaterally in the cause of preventing a total degeneration of law and order a decision was taken, after much anxious consideration, to prevent yet further damage to the administration of justice by at least avoiding the imposition upon the courts and those who appear before them yet another unworkable Decree of the kind first seen in 1987.

While there is certainly room for frank, open and candid discussion and disagreement about the course we have taken there is no possible justification for the nasty, cliché-ridden and almost hysterical letter which you have chosen to put your name to recklessly to charge the Judges as a whole with forswearing their oaths of office when some of them were not even in the country when the decisions of which you complain were taken is really going too far.

The release of your letter to the public via the media, presumably on your authority, was quite outrageous and has, I believe, done grave harm to the hitherto generally cordial relationship between Bench and Bar.

I fully endorse and support the actions taken by the Hon. Chief Justice and have no hesitation in associating myself with the last paragraph of his letter.

Yours faithfully

M.D. Scott"

Mr. Patel commented at the hearing that "there was no affidavit from the proposed Interested Party in reply. No denial. No denial of active role. He confirms his participation." Certainly this presented a quandary on the evidence. In his first affidavit the proposed Interested Party had denied the facts, yet in his own letter to the President of the Fiji Law Society he was admitting the offering of advice and the drafting of decrees (by implication). Lastly he gave full indorsement and support for the actions taken by the Chief Justice. In view of this dichotomy and conflict in the proposed Interested Party's evidence it was hardly surprising that Mr. Patel said that had he the opportunity he could as counsel have gone for discovery and subpoena of witnesses.

In view of the admissions of conduct in the correspondence, it would appear a full and frank disclosure of events, which the proposed Interested Party says were in dispute, has not occurred. Whether this amounts to a material non-disclosure is perhaps not the issue. Certainly it would have been difficult to resist an application by the opposing party for an order for attendance for cross-examination pursuant to Order 38 rule 2 since the affidavits alone would not have resolved the facts.

The nexus, if it were to be found, would have to arise not on the proposed Interested Party's own affidavits but on the material put in by the opposing original applicant of the proposed Interested Party's own admissions in his letter to the Fiji Law Society.

Identity of the 3 Judges
The remarks in the main judgment contained in pages 29-34 contained under the heading "What is the duty of the Judiciary upon the occurrence of extra-constitutionality?" were of course observations by the way, or as lawyers say, obiter dicta. They do not form part of the declaratory orders, the result of the litigation.

Pages 29-32 make general observations concerning the judiciary in terms of extra-constitutionality. No judges are singled out for comment nor in these passages is reference made to a particular set of Fiji facts. From pages 32 (half way down) to page 34 there are 7 paragraphs set out which deal with events with more specific linkage to Fiji's recent constitutional crisis. Paragraphs 5-7 are specific and the role of 3 judges is referred to. No judge is named. It was not necessary to do so. Individual roles were not being examined. It was more important to set out, from the cases, what should be the approach of the judiciary in such a crisis. After all, the roles of other significant public figures, who were not added as parties, were nonetheless subject to certain observations, and their conduct so far as it affected the constitutional position or the declaratory orders, was inevitably commented on.

In Fiji there are presently only 10 High Court Judges. Observers might be reassured to know that only 3 of that number were involved in decisions, that in hindsight and upon reflection, would be considered overhasty and unwise.

Not everything that a judge will pronounce on in times of constitutional crisis will be before the court in affidavit form. In Petitions challenging the Provisional Constitutional Order and Proclamation of Emergency (unreported) Supreme Court of Pakistan 2000 (http://www.radio.gov.pk/SCJ.html) the Supreme Court of Pakistan (I.H.Khan CJ for the court) in ruling on the constitution not only relied on notorious facts, but also drew upon knowledge of events concerning the judiciary which were peculiarly within their own knowledge. It was not simply the ridicule, to which the judiciary had been subjected by the former Prime Minister of Pakistan and his party that the court could draw upon. This was referred to as a plan "where the image of the judiciary was tarnished under a well conceived design; where the telephones of the judges of the Superior Courts and other personalities were tapped in spite of the law laid down by this court..." The judiciary did not file affidavits concerning this abuse or the telephone tapping. Equally in Fiji during this crisis it is within the knowledge of certain judges that their telephones have been tapped. Amongst the judges, it is known certain roles were played in the constitutional crisis by members of the Judiciary. Apart from what has already entered the public domain by their own reported comments or press statements, there has been no need to identify such judges, unless they wish, as here, to do so themselves. What is of greater public importance is the need for the judiciary as a constitutional arm of the State to follow the correct path in regard to extra-constitutionality.

Was it necessary to make the observations?
Put another way this question could mean "is joinder appropriate because it is said the proposed Interested Party was criticised in vain?" The answer is twofold. First the issues arose out of the submissions raised by the applicant's counsel [see extract of submission, applicant's affidavit]. And second, the approach to the occurrence of extra-constitutionality involved an examination of the judiciary's function and duties in the matter. This concerned a specialised area of the law. Most of the world's Law Schools are situated in calmer Constitutional climes and extra-constitutionality is not one of the subjects generally offered in first degree law courses. It was suggested by counsel for the proposed Interested Party that the traversing of the judiciary's role was superfluous. Unfortunately the entangling with persons and constitutional events at the critical time brought the judiciary's conduct also into focus. It would be too optimistic at this stage to say Fiji will never again suffer a coup d' etat, and so it must be concluded that was necessary for the judiciary to reassess its preparedness.

Is joinder appropriate?
Though the application is opposed by the original applicant, Chandrika Prasad, the dispute that the proposed Interested Party raises is in essence solely with the court. Though not named in the judgment, the proposed Interested Party has chosen to bring these proceedings saying he is referred to. His affidavits provided no nexus and only on the opposing party's affidavit does the nexus come to light from the proposed Interested Party's own admissions in his letter to the Law Society. It is obvious that the proposed Interested Party has been less than frank in his affidavits. If he was an aggrieved party he could have stated he was wrongly adjudged, and after establishing his identity, set out exactly what he claims are the inaccuracies and wrongful statements alongside his corrected version of the facts so as to seek a remedy from the appeal court. This was not done.

In the Fiji Medical Association v Ramon Fermin Angco and the Fiji Medical Council (unreported) Court of Appeal Civil App. No. ABU0041 of 1997S 7 November 1997, the sealed order [1st August 1997] stated that the Fiji Medical Council was refused leave to appeal against the decision of the High Court (Scott J.) rejecting the applicant's application for joinder. Leave was also refused by the single Judge of Appeal for joinder in the proceedings. But leave was granted for the applicant to appeal to the Court of Appeal against Scott J's judgment "as matters of considerable public importance in issue and because of the unsatisfactory manner in which facts were presented to Scott J. could not be fully explored by him." The full court in its Judgment at p.3 said:

"The Appellant is an association established by section 41 of the Act. Its objects as set out in section 42: they include promoting the welfare, and maintaining the integrity and status of the medical profession, and protecting and assisting the public and the medical profession in all matters touching, ancillary or incidental to the practice of medicine. As matters of considerable public importance were in issue in the proceedings in the High Court, matters in respect of which the Appellant has a strong interest, leave was given by this Court for it to appeal against Scott J.'s judgment. Leave has also been given for it to adduce additional evidence."

The Appellants in Performing Right Society (supra) had failed to join as parties the legal owners of the copyright of certain music hall songs. As a result they failed to obtain a perpetual injunction against infringement of their rights.

At 14 Viscount Cave LC said:

"That an equitable owner may commence proceedings alone, and may obtain interim protection in the form of an interlocutory injunction, is not in doubt; but it was always the rule of the Court of Chancery, and is, I think, the rule of the Supreme Court, that, in general, when a Plaintiff has only an equitable right in the thing demanded, the person having the legal right to demand it must in due course be made a party to the action: Daniell's Chancery Practice, 7th ed., vol. i, p.172.

And further on the same page:

"Further, under Order XVI, r. 11, no action can now be defeated by reason of the misjoinder or non-joinder of any party; but this does not mean that judgment can be obtained in the absence of a necessary party to the action, and the rule is satisfied by allowing parties to be added at any stage of a case."

In Sukh Deo Prasad & Anor. v Attorney-General (unreported) Court of Appeal Civil App. No. ABU0029 of 1997 13 August 1997 in the course of judicial review proceedings a lawyer acting for the 1st Applicant was the subject of "a number of very serious allegations of professional misconduct." Counsel was reported to the Fiji Law Society. Later it was concluded that it seemed that the foundation of facts on which the judge had relied on for his opinion of counsel's conduct did not exist, that is to say that the allegations which he made against that counsel, the 2nd Applicant, were unfounded. First counsel sought leave to appeal against the judgment. He needed it because the decision was an interlocutory one (which is not the case here) but also because as Thompson JA said at p.3:

"A person who was not a party to the proceedings in the High Court cannot appeal to this Court against a final or an interlocutory judgment or order of that Court unless he or she first obtains the leave of this Court to do so. In order to obtain that leave the person must be interested in or aggrieved or prejudicially affected by the judgment or order (Re Securities Insurance Co. [1894] UKLawRpCh 68; [1894] 2 Ch. 410)"

There is no application for leave to appeal before me as there should have been.

In denying counsel (the 2nd Applicant) leave to appeal Thompson JA at p.4 said this:

"(Counsel) is aggrieved by the statements about him made by Lyons J in giving the reasons for the order which he made; he may well be prejudicially affected by the fact that those statements were made. But he is not aggrieved by the order, nor is he prejudicially affected by it. He has no personal interest in the question whether leave to apply for judicial review was granted or revoked. The reasons given for a judgment or order may show that it is wrong or not the result of proper judicial consideration of the facts or the law or both; but it is only the judgment or order itself which has legal effect. For that reason it is only the judgment or order against which appeal can lie to this Court."

Were there an application for leave before, me, I should deny leave for the same reasons as Thompson JA has set out above.

In Ratu Ovini Bokini v The State; Chief Magistrate as proposed Interested Party (unreported) Court of Appeal Cr. App. No. AAU0001 of 1999S 12 November 1999 the Chief Magistrate through counsel sought leave to be heard as an Interested Party and to be heard at the hearing of the consolidated appeals. The appeal judge in the High Court had found that:

"the reasonable observer would conclude that the Chief Magistrate was biased against the prosecution. Byrne J. was not required to hold nor did he hold that the Chief Magistrate was actually biased. In his affidavit in support of his application, the Chief Magistrate expressed concern at some unfavourable comments about him found in the judgment of Byrne J. The Chief Magistrate wished to provide this Court with his personal recollection, impression and assessment of counsel's demeanour during the preliminary inquiry. He claimed that the record (tapes and written record) did not capture counsel's demeanour. He claimed that public confidence in him and his office was eroded and that he should have an opportunity to place his situation before this Court."

The Chief Magistrate's conduct had similarly been the subject of a complaint to the Judicial Services Commssion.

At 3 the Court said:

"No case was cited to us where an appellate Court has granted the Court appealed from to appear as a party to the appeal. The normal parties to any appeal are the litigants in a civil case or the prosecution and the accused in a criminal case. That is not to say that an appellate Court will not in unusual circumstances appoint an amicus or allow public interest parties to be heard. For example, see Z v Z [1997] 2 NZLR 257 where the New Zealand Court of Appeal appointed amici curiae and allowed special interest groups to be heard on an appeal in a matrimonial property dispute where the issues involved transcended in public importance the mere personal interests of the litigants."

The court concluded generally at 4:

"A judicial officer has to accept that not all his or her decisions will be accepted meekly by litigants; it is part of the legal system that there will be inevitable appeals. Sometimes appellate Courts will criticise lower Court Judges quite severely. The English Court of Appeal decision in Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55 is a well-known example. Often a lower Court judge, criticised by a higher Court, may feel indignation at what he or she sees as unjustified criticism of a course of conduct adopted or a decision made in the course of a difficult judicial proceeding. But, usually, the lower Court Judge has to put up with the appellate decision with such fortitude as he or she can command. Being successfully appealed against is one of the less attractive aspects of the judicial vocation, but it "goes with the territory". (my underlining)

Accordingly, we consider that there is no justification for allowing the Chief Magistrate to be a party to this appeal."

I do not believe that the proposed Interested Party's issues in dispute are transcended here, in public importance, over personal interests, and the issues in dispute are far from clear from the evidence adduced.

The application is dismissed with costs to the original applicant of $500.

That is not all. Since writing this ruling at the application of the proposed Interested Party, I have learnt like other members of the public through the newspapers, that the proposed Interested Party through his counsel has attended upon the single Judge of the Court of Appeal in chambers on 15 January 2001. If the reports of proceedings are accurate, the proposed Interested Party through his counsel, then withdrew his appeal before the Court of Appeal. No approach has been made to this court to seek leave to withdraw. Apart from the obvious discourtesy of not doing so first, there is the premature approach to the Court of Appeal prior to the exhaustion of the litigant's remedy before the High Court on the matters of joinder (and the omitted leave to appeal). It is quite possible that the single Judge of Appeal was not informed of the true status of remaining matters with the High Court. If that is so, counsel for the proposed Interested Party should not have made such premature application in obvious breach of the Court of Appeal Rules. At this stage in the proceedings, the High Court is the court seized of the matter, and the concurrent jurisdiction of the Court of Appeal will only be enlivened upon the completion of the present application before the High Court. His client as a High Court Judge can be assumed to be well aware of this rule. Unfortunately this is the second such application to the Court of appeal in breach of the rules, a matter which I shall refer to the attention of the Acting Registrar of the Court of Appeal.

Application fails.

Marie Chan