Anisimai v The State [2005] FJHC 125; HBM0035D.2004S (6 June 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBM0035D OF 2004S

IN THE MATTER of an application
For Constitutional Redress by Makario Anisimai.

BETWEEN:

MAKARIO ANISIMAI
Applicant

AND:

THE STATE
Respondent

Makario Anisimai: In Person
Mr H. Rabuku: For the Respondent
Ms K. Bavou: For D.P.P.: (as Amicus Curiae)
Mr U. Ratuvili: For Human Rights Commission: (as Amicus Curiae)

Date of Decision: 6 June 2005
Time of Decision: 9.45 a.m.

DECISION

I am satisfied that having now got the particulars of the relief being sought by the Applicant and the details of the allegations, that the procedure is wholly inappropriate. The alleged breaches of the Applicant’s constitutional rights relate to allegations of mistreatment and abuse of the prisoners. The use by the Applicant of Motion or Originating Summons to seek declarations from this Court in which there are clearly disputes as to facts is clearly an abuse of the Court process. This process is usually for the determination of a legal issue without contested evidence. This action should be by a Writ of Summons.

At any rate the Applicant has not clearly exhausted all avenues of relief that are open to him.

I am mindful that I had asked the Human Rights Commission as well as DPP’s Office to assist the Court. I am grateful for their assistance in their efforts to satisfy the requirements of the law. But in the end, it is obvious that the Applicant’s effort through the filing of a Motion to establish this breach of his rights, cannot be done by affidavit evidence alone and given that the Applicant still has to pursue his alternative remedies, I have no alternative but to dismiss this application.

I make no order as to costs.

F. Jitoko
JUDGE