Prasad v Payton Hooks III [2005] FJHC 479; HBC0446.2004 (12 October 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0446 OF 2004

BETWEEN:

VIJAY VIJENDRA PRASAD
PLAINTIFF

AND:

JOE PAYTON HOOKS III
DEFENDANT

No Appearance of Plaintiff
Mr. G. O’Driscoll for Defendant

Date of Hearing: 3rd October 2005
Date of Ruling: 12th October 2005

RULING

On 12^th October 2004 the plaintiff obtained ex-parte a number of orders including a writ ne Exeat Civitate unless the defendant deposited a sum of $4,689.81 or surrender his passport or give some other form of security satisfactory to the plaintiff that he will not go out of Fiji without the leave of the Court. The plaintiff had filed a writ of summons with endorsement only. Till today the statement of claim has not been filed. The defendant has remained in Fiji.

On 14^th September 2005 the defendant by ex-parte motion (which I ordered to be made into parte) sought orders for return of his passport and that the writ ne Exeat Civitate be cancelled. The motion was served on plaintiff’s solicitors on 26^th September 2005 and on 3^rd October it was heard. The plaintiff’s counsel did not appear.

My brother Judge Pathik who had granted ex-parte orders was on leave so the file was placed before me.

Of relevance to consider this application is Section 34(6) and (7) of the Constitution. These two subsections give grounds on which a person’s freedom of movement may be restricted. The only ground I consider relevant to the present proceedings is contained in Section 34(7)(c) which restricts freedom of movement “for the purpose of imposing a restriction on the person that is reasonably required to secure the fulfilment of an obligation imposed on the person by law”. An obligation imposed by law, means an impost imposed by superior authority as opposed to a purely private debt – Westpac Banking Corporation v. Satish Chandra – HBC0356 of 1991.

The claim in the present proceedings according to plaintiff’s affidavit was for use of telephone facility which the defendant used while he was plaintiff’s tenant. That is not impost but only an unproven private debt.

The other important words in the section are “reasonably required”. The defendant’s visitor’s visa to Fiji expired on 13^th October 2004. He was not authorized to engage in any business or employment. He is now overstaying his visa. Since he cannot engage in any employment he cannot make payments. He says he is a basketball player and has a potential contract lined up in Brisbane and would be able to pay proved debts once he begins playing.

The plaintiff for last eleven months or so has made no effort to prove the debt. Having stopped the defendant from leaving the jurisdiction he made no effort to prove the debt by filing his statement of claim. Continued presence of the defendant in Fiji serves no purpose since he cannot work regardless of how long he is held back in Fiji. He would not be able to pay even if there is a debt. I do not consider that this type of restriction is reasonable and justifiable in a democratic society. The restriction has gone on for too long. The defendant comes from the USA and holds a passport from that country. I therefore order that the passport be returned to the defendant, the writ ne Exeat Civitate be cancelled. The defendant is free to leave Fiji.

[ Jiten Singh ]
JUDGE

At Suva
12^th October 2005