Fijian Association v Cakobau [1995] FJHC 107; Hbc0250d.95s (26 June 1995)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 0250 OF 1995

Between:

THE FIJIAN ASSOCIATION
Plaintiff

- and -

ADI LITIA SAMANUNU CAKOBAU
1st Defendant
THE SUPERVISOR OF ELECTIONS
2nd Defendant
THE ATTORNEY-GENERAL OF FIJI
3rd Defendant

Mr. S. Matawalu for Plaintiff
Mr. A.R. Matebalavu for 1st Defendant
Mr. I. Mataitoga, Solicitor-General, for 2nd and 3rd Defendants

RULING

In early 1994 pursuant to Writs of Election issued by the President a general election was held in the country for the purpose of electing members of the House of Representatives.

One of these election writs was directed to the Commissioner, Central Division, requiring him: "... to cause an election to be held according to law of three members to sit and vote in the House of Representatives as the members for the Tailevu Fijian Provincial Constituency ... and that on or before the 31st March, 1994 you make a return (to me) of the names of such members when so elected and I hereby direct that you shall receive the nomination of ... candidates for such constituency (at his office in Nausori) on the 28th day of January, 1994 ..."

The election for the Tailevu Fijian Provincial Constituency was contested by several political parties including the Soqosoqo ni Vakavulewa Ni Taukei (the 'SVT') which fielded 3 candidates under its banner including the first defendant Adi Litia Samanunu Cakobau, and the plaintiff Fijian Association which also fielded 3 candidates including the proposed additional plaintiff Josevata Nakausabaria Kamikamica.

On the 28th of February 1994 in his report to the Supervisor of Elections the Commissioner Central reported that the 3 candidates elected for the Tailevu Fijian Provincial Constituency were: the first defendant, Adi Litia Samanunu Cakobau and her two running mates. The report also recorded that the candidate who polled the fourth highest number of votes was the proposed additional plaintiff Josevata Nakausabaria Kamikamica.

By notice in an extraordinary edition of the Fiji Republic Gazette dated 8th March 1994 the Supervisor of Elections published the results of the 1994 general election declaring amongst others, that the first defendant Adi Litia Samanunu Cakobau had been elected as one of the members of the House of Representatives in the Tailevu Fijian Provincial Constituency.

Fifteen (15) months later on the 18th of May 1995 the plaintiff Association issued an originating summons against Adi Litia Samanunu Cakobau, the Supervisor of Elections and the Attorney-General claiming various declarations and an injunction against the first-named defendant seeking to restrain her: "... from occupying a seat in the House of Representatives as an elected member thereof."

On the 19th of May 1995 an 'Acknowledgment of Service' was entered for all the defendants by the Solicitor-General who also lodged a summons to strike out the action on the grounds that it 'disclosed no reasonable cause of action'; was 'scandalous, frivolous or vexatious'; and otherwise 'an abuse of the process of the Court'. The inherent jurisdiction of the Court was also invoked.

Five (5) days later on the 24th of May 1995 the plaintiff Association issued an interlocutory summons seeking to add with his consent, Josevata Nakausabaria Kamikamica, as a plaintiff to the action.

In summary therefore, besides the plaintiff Association's substantive summons, there are two (2) interlocutory applications before the Court for immediate consideration, namely, the Solicitor-General's application to strike out the action and the plaintiff Association's application to join Josevata Nakausabaria Kamikamica as an additional plaintiff.

I am grateful to all counsels for their written submissions on these 2 applications which I shall now proceed to deal with in order of lodgment. Firstly, the application to strike.

In this regard I would respectfully adopt the decision of the New Zealand Court of Appeal in Lucas & Son (Nelson Mail) v. O'Brien (1978) 2 N.Z.L.R. 289 as being a convenient summary of the correct approach to the Solicitor-General's application, where it was

"Held: The court must exercise its ... jurisdiction to strike out pleadings sparingly and with great care to ensure that a plaintiff was not improperly deprived of the opportunity for a trial of his case. However, that did not mean that the jurisdiction was reserved for the plain and obvious case; it could be exercised even when extensive argument was necessary to demonstrate that the plaintiff's case was so clearly untenable that it could not possibly succeed."

Furthermore as was said by Stephenson L.J. in McKay v. Essex Health Authority (1982) 1 Q.B. 1166 at p.1177:

"... a defendant has a prima facie right to be relieved of having to meet a claim which discloses no reasonable cause of action, ..."

In support of his application the learned Solicitor-General raises three (3) distinct arguments which may be briefly summarised - Firstly, it is argued that the present action is a 'disguised' election petition which seeks to circumvent the time limit imposed under the relevant electoral regulations; secondly, in so far as this is an action brought pursuant to Section 46 of the Constitution the plaintiff Association has no 'locus' or standing to bring the present proceedings; and thirdly, the plaintiff Association's deliberate omission to raise its objections to the first defendants' candidacy at the appropriate time gives rise to a form of 'estoppel' which precludes it from now raising its objections.

In brief the Solicitor-General's submission is that the plaintiff Association's action is 'frivolous and vexatious' in that it is not properly pleaded and also is 'an abuse of the court's process' in that, correct procedures were not followed in bringing the matter before the Court.

Mr. Matawalu for the plaintiff Association on the other hand argues equally forcefully, that the plaintiff Association's action is not a 'disguised' election petition but an original application brought pursuant to Section 113 of the Constitution. Furthermore counsel rhetorically asks: "... what better cause of action can anyone bring to Court than (the) breaches of the Constitution which is clearly maintainable as a matter of law?"

On this latter submission insofar as it appears to suggest that an application raising a constitutional question can never be considered frivolous or vexatious, I entirely disagree. In the first place the Constitution itself clearly envisages the making of such an order [See: Sections 19(5) and 115(2)]. Secondly, reference may be made to the judgment of Gould V.P. in Attorney-General v. Halka 18 F.L.R. 210 where after considering various authorities dealing with the court's power to strike out proceedings the learned Vice-President observed at p.214:

"... these cases indicate that in a proper case a Statement of Claim will be struck out notwithstanding that it raises a constitutional question ..."

and finally, reference may be made to the judgment of the Fiji Court of Appeal in James Madhavan v. John Falvey and Others 19 F.L.R. 140 in which the Court of Appeal upheld the learned Chief Justice's exercise of his summary powers to strike out the action although breaches of the Constitution were alleged and important questions of 'parliamentary privilege' were raised in the appellant's Writ.

Be that as it may the submissions clearly raises for decision important constitutional and procedural questions as to the scope and relationship (if any) between the provisions of Section 46 and Section 113 of the Constitution.

However before attempting to construe these provisions of the Constitution I remind myself that the Constitution is "the supreme law of Fiji". Furthermore as was said by the Privy Council in Ong Ah Chuan v. Public Prosecutor (1981) A.C. 648 at p.669:

"The way to interpret a Constitution on the Westminster model is to treat it not as if it were an Act of Parliament but 'as sui generis' calling for principles of interpretation of its own, suitable to its character ... without necessary acceptance of all the presumptions that are relevant to legislation of private law."

Section 46 of the Constitution provides that the High Court shall have jurisdiction to hear and determine any question whether any person has been validly elected as a member of the House of Representatives and subsection 2 provides for an application to be made to the Court by "... any person registered as a voter for the purpose of electing members of the House of Representatives ...". In identical vein Section 60 makes provision for the determination of questions relating to the validity of the appointment of a member of the Senate.

It is noteworthy in our Constitution which is clearly derived from the Westminster model and which is based on the 'separation of powers' that the above provisions dealing with the jurisdiction of the High Court should occur in Chapter VI of the Constitution which deals specifically with PARLIAMENT which is the state organ or institution in which the plenitude of the state's legislative power is vested rather than in what might be considered the more appropriate, Chapter VIII which deals with the JUDICATURE and which establishes the various superior courts and contains provisions setting out inter alia the general jurisdiction of the High Court and within which Chapter, Section 113 occurs.

In my view the jurisdiction granted to the High Court by Sections 46 and 60 and their particular location within the framework of the Constitution are explicable according to the earliest constitutional traditions and privileges of an elected Parliament and gives meaning and effect to their ambit.

This constitutional tradition is succinctly explained by Lord Upjohn in the course of delivering the judgment of the Privy Council in Devan Nair v. Yong Kuan Teik (1967) 2 A.C. 31 when he said at p.38:

"Constitutionally decisions on questions of contested elections are vested in the assembly for which the contested election has been held, but in the course of the nineteenth century many countries, including this country and many of her Majesty's possessions overseas, adopted the view that, as the deliberations of the assembly itself were apt to be governed rather by political considerations than the justice of the case, it was right and proper that such questions should be entrusted to the courts."

Almost a century earlier in 1876 and in similar vein, Lord Cairns in delivering the judgment of the Privy Council in Theberge v. Laudry (1876) 2 A.C. 102 said of two (2) Acts of the Quebec Parliament dealing with contraverted elections at p.106:

"These two Acts of Parliament ... are Acts peculiar in their character. They are not Acts constituting or providing for the decision of mere ordinary civil rights. They are Acts creating an entirely new, and up to that time unknown, jurisdiction in a particular Court of the colony, for the purpose of taking out, with its own consent, of the Legislative Assembly, and vesting in that Court, that very peculiar jurisdiction which, up to that time, had existed in the legislative Assembly of deciding election petitions, and determining the status of those who claimed to be members of the Legislative Assembly. A jurisdiction of that kind is extremely special, and one of the obvious incidents or consequences of such a jurisdiction must be that the jurisdiction, by whomsoever it is to be exercised, should be exercised in a way that should as soon as possible become conclusive, and enable the constitution of the Legislative Assembly to be distinctly and speedily known."

[See also: generally Eskine May's 'Parliamentary Practice' (21st edn) at p.80]

In the context of the present application and paraphrasing the above dicta there is not the slightest doubt in my mind that the 'peculiar' and previously 'unknown jurisdiction' of the High Court in electoral matters arises from and is to be found exclusively in Section 46 of the Constitution and nowhere else. On this jurisprudential basis alone Section 46 must prevail over Section 113.

But although the parliamentary and constitutional origins of the High Court's jurisdiction in electoral matters is sufficiently clear, Section 46 establishes no specific procedure whereby the Court's jurisdiction may be invoked. The question that next arises is - "can the jurisdiction be invoked through an application under Section 113 of the Constitution or is there some other equally 'peculiar' procedure?"

The answer in my view lies in an examination of the powers and functions of the constitutional body charged with the general responsibility and overall supervision for the registration of voters for the election of members of the House of Representatives and the conduct of elections of such members, namely, the Electoral Commission.

The Electoral Commission is established under Section 53 of the Constitution and "... shall have such powers and other functions (relating to the registration of voters and the election of members of the House of Representatives) as may be prescribed" in an Act of Parliament.

Section 3 of the Electoral Decree 1991 further empowers the Electoral Commission to make regulations "... for the purpose of carrying into effect the provisions of the Constitution ..." which includes the High Court's jurisdiction in electoral matters under Section 46, and more particularly, for the following matters:

"(a) the registration of voters;

(c) nomination of candidates;

(d) the holding and conduct of elections, and

(e) election petitions."

In the exercise of its powers under Section 3 and 3(e) of the Electoral Decree, the Electoral Commission has made the Electoral (Election Petition) Regulations 1992 which sets out comprehensively the scope, contents and necessary parties to an 'election petition'; the practice, powers and procedure to be followed by the High Court in the trial of an 'election petition'; the nature and effect of a decision of the Court on an 'election petition'; and other incidental matters.

In terms of the present application reference need only be made to the definition of a "petition" which means a petition questioning an election of a member or members of the House of Representatives for a constituency (which would encompass the matters raised in the plaintiff Association's originating summons), and to the provisions of Regulations 3, 5 and 8 which inter alia has the combined effect of limiting the time within which a valid 'election petition' may be presented to the High Court to: "... twenty one days after the returning officer has declared any candidate to be elected."

Furthermore Regulation 17 in keeping with an 'obvious incident' of the Court's jurisdiction in electoral matters requires the disposal of an 'election petition' "... within two months after the day on which the petition was filed ", and Regulation 18 declares:

"No appeal shall lie against any decision of the Court on a petition which shall be final and conclusive."

Bearing in mind the rather special nature of the Court's jurisdiction in electoral matters and the importance in the public interest of securing at an early date a final determination of an 'election petition' and thereby ascertaining the representation in Parliament of the constituency affected, this Court is inevitably driven to conclude that its jurisdiction under Section 46 of the Constitution can only be invoked by way of an 'election petition' brought under the Election (Electoral Petition) Regulations 1992 and not otherwise.

Needless to say to permit the plaintiff Association to bring the present application some 15 months after the official publication of the results of the elections under a general jurisdiction provision of the Constitution would not only amount to ignoring the very special nature of the Court's jurisdiction in electoral matters and the equally special procedures and time limits laid down for invoking the Court's jurisdiction, but most importantly, the over-riding public interest in a quick and final decision as to who shall be entitled to sit as the elected representative of the voters of a 'disputed' constituency in the House of Representatives would be plagued by uncertainty, and, in the final analysis, rest upon the arbitrary whim of a disgruntled voter.

I cannot accept that the provisions of our Constitution which affirms the 'rule of law' could be allowed to be used so as to undermine the membership of so vital an institution of the State, as the House of Representatives.

In my view acceptance of the plaintiff Association's argument would have the consequence that in every contested election in which a disgruntled voter alleged a breach of a constitutional provision there would be parallel remedies available to him: one by 'election petition', the other, by originating application under Section 113 of the Constitution to the High Court with further rights to appeal to the Court of Appeal and Supreme Court. These parallel remedies would be also cumulative since the right to apply under Section 113 of the Constitution is stated to be 'without prejudice to any other cause of action with respect to the same matter which is lawfully available.'

The result would be that a disgruntled voter having exercised unsuccessfully the 'election petition' procedure from which there is no right of appeal, could nevertheless then launch a collateral attack (it may be years later) on an election result which the High Court had originally upheld, by simply making an application for relief under Section 113 of the Constitution to a court of co-ordinate jurisdiction i.e. the High Court.

The Privy Council in rejecting a similar argument in Chokolingo v. Attorney-General of Trinidad and Tobago (1981) 1 ALL E.R. 244 said at p.249:

"... an interpretation which would lead to this result would in their lordship's view, be quite irrational and subversive of the rule of law which it is a declared purpose of the Constitution to enshrine."

I am further fortified in my view by the decision of the Privy Council in Kemrajh Harrikissoon v. Attorney-General of Trinidad and Tobago (1980) A.C. 265 where a school teacher unsuccessfully sought to challenge his transfer by invoking the constitutional provisions for redress instead of the available appeal procedures provided by the relevant Regulations.

Lord Diplock in categorising the action as "wholly misconceived" said at p.268:

"The right to apply to the High Court (for redress) under ... the Constitution, is an important safeguard; but its value will be diminished if it is allowed to be misused as a general substitute for the normal procedures for invoking judicial control of administrative action. In an originating application to the High Court ... the mere allegation that (a constitutional provision) has been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the jurisdiction of the court ... if it is apparent that the allegation is frivolous and vexatious or an abuse of the process of the court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy ..."

A fortiori in this case where the application is time-barred under the 'normal procedures' available for invoking the court's special jurisdiction in electoral matters.

In my view the Election (Electoral Petition) Regulations 1992 defines exhaustively the legal rights enjoyed by a disgruntled voter to challenge an 'undue election or return', and the plaintiff Association having deliberately failed to avail itself of that remedy cannot now be permitted to pursue its claim. I too would hold that the plaintiff Association's action is 'wholly misconceived', is 'an abuse of the process of the court' and accordingly fails in limine.

If however I should be wrong in the above view and that there is a possibility of a 'conflict' between the provisions of Section 46 and Section 113 of the Constitution then such conflict as may arise between them ought, in my humble opinion, to be resolved by the application of the rule of statutory construction encapsulated in the Latin maxim: "Generalia specialibus non derogant." (i.e. 'general things do not derogate from special things').

This rule was clearly enunciated almost 150 years ago in the judgment of John Romilly M.R. in Pretty v. Solly (1859) 122 R.R. 263 when the learned Master of the Rolls said at p.265:

"The rule is, that where there is a particular enactment (viz: Section 46) and a general enactment (viz: Section 113) in the same statute, (the Constitution) and the latter, taken at its most comprehensive sense would over-rule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply. Again, wherever two parts of a statute are contradictory, the Court endeavours to give a distinct interpretation to each of them, by looking at the context."

It is unfortunate that the draftsman of the 1990 Constitution did not see fit to adopt the cautious approach of the 1970 - draftsman by expressly excluding electoral questions from the ambit of Section 113 (See: Section 97(5) of the '1970 Constitution'), but the omission only serves in my view, to reinforce the applicability of the 'maxim' and is perhaps a reflection of the circumstances under which the '1990 Constitution' came into being.

In the context of the present action the particular jurisdiction of the High Court in Section 46 of the Constitution must prevail over its general constitutional jurisdiction to be found in Section 113 when dealing with electoral matters raised after the declaration of an election result.

It might be that Section 113 of the Constitution may have application at the 'nomination stage' of an election where a candidate's qualifications to stand for election are more likely to be under scrutiny and where the court's 'special' jurisdiction under Section 46 of the Constitution could not be invoked, but where an election 'has been' held and the result declared, then in my considered opinion, the High Court's jurisdiction under Section 46 to determine any question as to the validity of such election, must be regarded as complete and exclusive.

Having thus held that the only remedy lawfully available to a disgruntled voter to challenge the results of an election is by way of an 'election petition', it is unnecessary for me to deal in any detail with the plaintiff Association's application to join Josevata Nakausabaria Kamikamica as an additional plaintiff in the action. Suffice it to say joinder would make no material difference to the court's decision on the matter.

Nor in my view is it necessary or desirable that I should express any opinion as to the plaintiff Association's 'standing' in terms of either Sections 46 or 113 of the Constitution or upon the 'merits' of the plaintiff Association's substantive case or even the 'appropriateness' of the various declarations sought by the plaintiff Association and I decline to do so.

I am of course acutely aware that this decision is based upon what many may consider to be 'legal technicalities' but I take some comfort in the decision in Arzu v. Arthurs (1965) 1 W.L.R. 675 where the Privy Council in rejecting an appeal against a decision dismissing an 'election petition' on procedural grounds, said at p.679:

"If the decision in this peculiar jurisdiction is to be final such finality must apply irrespective of the reasons for the decision. The fact that no evidence has been heard does not affect the general principle. The court in the present case did not refuse jurisdiction; it decided in its peculiar jurisdiction that the petitions were defective. As a result the petitions were dismissed. A dismissal based on a procedural matter is none the less a decision in an election petition, even where the matter has not proceeded to the hearing of evidence."

In conclusion, the application of the plaintiff Association is so clearly an 'abuse of process' that it could not possibly succeed even in an expanded or amended form, and accordingly must be and is hereby dismissed as 'frivolous and vexatious'.

(D.V. Fatiaki)
JUDGE

At Suva,
26th June, 1995.

HBC0250D.95S