Ali v Credit Corporation (Fiji) Ltd [2007] FJHC 125; Civil Action No 6. 2007 (9 March 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 6 OF 2007

BETWEEN

1. BAHADUR ALI f/n Jamalu Din

2. KAMRU DEAN f/n Jamalu Din

3. SAFIRA ALI f/n Bahadur Ali

4. VALLEY ARTESIAN WATERS (FIJI) LIMITED

Plaintiffs

AND

1. CREDIT CORPORATION (FIJI) LIMITED

2. NALIN PATEL f/n Rasik Patel

3. THE DIRECTOR OF LANDS

4. ATTORNEY-GENERAL

Defendants

Mr. I. Samad for the Plaintiffs
Mr. H. Nagin for the 1^st & 2^nd Defendants
Mr. A. Pratap for the 3^rd & 4^th Defendants

Date of Judgment: 9.3.07

RULING
(on Contempt of Court)

This is my Ruling on contempt proceedings against Virendra Kapadia Equire, the solicitor representing Credit Corporation (Fiji) Limited (the 'C.C.L') and Uday Raj Sen ('Sen'), General Manager, Business Development and Lending of C.C.L.

Arising out of an application for dissolution of interim injunction herein, the following paragraph 12 in the affidavit herein of Sen sworn 30 January 2007, in the eyes of the Court, amounts to contempt of Court;

"I verily believe that these proceedings are an obvious abuse of process of this Honourable Court and tantamounts to "judge shopping" by the Plaintiffs and ought to be immediately struck out with costs and/or transferred to Mr. Justice Jiten Singh to be dealt with by him accordingly." (my emphasis).

Background

This action was filed in the High Court Registry during the Legal Vacation on 5 January 2007 and it was allocated to me following the Registry procedure for allocation of cases; I was the only one available. Because it was an ex parte injunction as a matter of some urgency it had to be attended to quickly.

The motion again came before me on 1 February 2007, on the returnable date of the ex parte application herein when Mr. Samad appeared on instructions from Sahu Khan & Sahu Khan, Solicitors, Ba for the plaintiffs and Mr. Virendra Kapadia appeared representing C.C.L. (the first defendant) herein.

At the time of this hearing in Chambers, Mr. Kapadia asked for transfer of this matter to His Lordship Mr. Jitendra Singh who he says 'extensively' handled some matters of the plaintiff Bahadur Ali. Mr. Samad asked for the order for interim injunction to continue, so I adjourned it before Master Udit for 2 February for him to deal with the best way he could.

However, when counsel appeared before the Master, he on his reading of Sen's said affidavit picked up said paragraph 12 and was concerned with reference to the words 'judge shopping' and immediately drew my attention to it.

I was very concerned with the nature of the allegation. Because of the application for transfer before another Judge and my attention not having been drawn to this paragraph by Mr. Kapadia, I referred it to the Master. Initially I did not read this lengthy affidavit otherwise I would have dealt with paragraph 12 then.

Seeing this state of affairs I was very disturbed and called both counsel in my Chambers and expressed my great concern at the said paragraph and questioned Mr. Kapadia on it. I asked the Master to stay during this Chamber hearing. The said Sen was not present.

This paragraph 12 I found was contempt in the face of the Court so I adjourned the matter to 5 February 2007 to hear both Mr. Kapadia and Sen to show cause on contempt hearing in Court.

At the hearing the Court told both Mr. Kapadia and Sen that the allegation is serious and they are in contempt of Court arising out of the circumstances leading up to the swearing of the affidavit on the part of Sen in relation to the said paragraph 12.

During the hearing evidence on oath was given by Mr. Kapadia, Sen and Mr. C.D. Singh, Senior Court Officer in charge of the High Court Registry.

In his statement on oath Sen admitted taking the 'oath' and that his said affidavit did have the word 'judge shopping' in paragraph 12. He said that he 'believed in the truth of it’ and then he said he 'may have chosen the words’. Then he tried to explain why he 'believed' in its truth commenting on one of the plaintiffs Bahadur Ali instituting five actions before five different judges.

This witness was not able to satisfactorily explain why he used the word "judge shopping". He was beating around the bush and was trying to wriggle out of the difficulties he put himself in by taking an oath and stating that he 'verily believed' that there was 'judge shopping' the definition of which I presume he studied in the weekend in preparation for this hearing.

When asked by Court: "Do you believe as you say that there was Judge Shopping here?" he replied: 'This is something which my lawyer and I discussed at the time of doing the affidavit and we basically meant this...' Then when asked "Do you agree now that there has been no Judge Shopping in this case?" he answered "Yes, I agree with you". Then he said: "I now understand that he doesn't have any control on which Judge it goes to". When asked further: "But at first you thought that he does that, is it?" he answered "Yes, your Honour because at first I thought too because he has filed so many multiple actions and he is able to go to as many different Judges and get an answer. He is able to go to different Judges, at first I totally believe that ..." Then he said when asked "But he has no control over it. You thought he has control?" he answered: "Initially, I did think that". And finally, he said when he took the oath he thought "he can do it" and then he signed. Then he said that he thought that he can pick his Judge.

It is abundantly clear from what Sen has said that he knew what "Judge Shopping" means and now when confronted with this tight situation he tries to give some other meaning to what he actually meant. He is an educated man and holds a Managerial position in a financial institution. He also had sound legal advice from Mr. Kapadia. I am sure Mr. Kapadia must have explained to him the meaning behind that paragraph.

I reject all Sen's explanations as to what he meant when he used the word "Judge Shopping" and I even go to the extent of saying that he has not come out with the truth.

Sen has made a very serious allegation against the Judiciary including the High Court Registry in penning those words in paragraph 12 and taking oath on it. This he did for reasons best known to him.

By going to the length of taking an oath before a Commissioner of Oaths, who is a Barrister & Solicitor, he has dug his own grave. To make matters worse, for an experienced legal advisor to let this paragraph go past him, which he now regrets, is beyond comprehension. That paragraph is couched in very simple English and one can give no other interpretation to the words then what they say and what they mean. Anyone reading it will come to no other conclusion that there is a practice of Judge Shopping in the High Court Registry implicating the Head of the Registry and the Judge handling it. You do not need much common sense to deduce that meaning of that paragraph.

I am thankful to the Master of the High Court for having drawn my attention to this paragraph as he was taken aback by the allegation and asked me if I had read the paragraph. I had not and Mr. Kapadia also did not draw my attention to it but asked for transfer of case to Jiten Singh J.

Mr. Kapadia explained how he came to allow the use of the word "Judge Shopping" in paragraph 12. When asked by Court: "Did you have to use the word "Judge Shopping" he replied "with hindsight we have used different wording in the Court of Appeal and we perhaps we should not" and said "it would have been worded different". Finally, Mr. Kapadia admitted that "It should with hindsight perhaps, we could do without paragraph 12". When questioned: "That claim has no relation to the issue before the Court?" he said "Absolutely, Sir".

The Senior Court Officer, Mr. C.D. Singh was very concerned with this 'serious' allegation. He said that papers were filed by Counsel for the plaintiffs and there was no contact with the plaintiffs. The case was allocated to the Honourable Judge in accordance with the practice of the Registry.

Conclusion

It is my firm view that this is a clear cut case of contempt of court. It was one committed in the face of the court.

This court cannot just sit by and do nothing particularly in the present climate in Fiji when wild allegations of all sorts are being hurled implicating the judiciary.

The allegation "Judge shopping" in this pending action, is a serious allegation implicating the Officers in the Registry as well as the Judge handling this matter. As Sir Richard Scott, Vice-Chancellor, in In re de Court (The Times of 27 November 1997 at p41) said:

"the administration of justice depended not just on judges and counsel in Court. It also depended upon court officials, members of the court service, discharging essential functions for the purpose of enabling cases to come to court."

Hence for judge shopping to succeed all the above players in the administration of justice are dragged in and implicated.

The explanation given for the use of the word 'Judge Shopping' is not acceptable at all. It should not have been necessary to explain away what they meant by the use of word "Judge Shopping".

This paragraph has done a lot of damage to me as I am the one handling this case at this moment. A damage inflicted on one who is the most senior judge appointed under the Constitution of Fiji in this country as well as the most senior, except for one, legal practitioner on the Banisters Roll in Fiji and also one who has been in the law profession for over 50 years having qualified in 1956.

To impute 'judge shopping' directly or indirectly will not be taken lightly and to say this on oath after discussion with a legal practitioner boggles one's mind.

But because the affidavit is a public document and becomes public knowledge it was open to me to call upon the two to show cause why they should not be dealt with for contempt. The Court can act on its own in matters of contempt. It is not that it can do so in the case of a direct affront to the court in Open Court. The Court can act summarily in a matter like this.

It will do well for legal practitioners to read and digest the following words of Best J in Rex v Davison 14 B & Ald 339 at 340:

"No man who pretends to any knowledge of the law can doubt that a judge of a Court of Record has authority to fine or imprison for any contempt committed in the face of the Court. From the earliest period of our history, this authority has been exercised. Every man who comes into a Court of Justice, either as a party or Barrister must know that decency is to be observed there, that respect is to be paid to the Judge. "

The dignity of the Court has to be upheld. I will be failing in my duty if I did not impose appropriate punishment on lawyers allowing the filing of such contemptuous document in the Registry. This practice has to cease forthwith to protect the reputation of the legal profession in this country. I would bluntly say to all legal practitioners not to fool around with the Judges of our Courts.

I must at this juncture make it abundantly clear that the power of punishment which a judge wields for contempt of court is vested in him, not for the vindication merely of his personal dignity, but for the upholding of the majesty of the law and the Courts. In this respect I am not unmindful of the following statements from the judgment of Holroyd J in Rex v Davison (supra at p339):

"in the case of an insult to himself, it is not on his own account that he commits, for that is a consideration which should never enter his mind. But though he may despise the insult, it is a duty which he owes to the station to which he belongs, not to suffer those things to pass which will make him dispicable in the eyes of others".

I conclude with the following passage from the judgment of Abbott, C. J in Rex v Davison (supra 339) which is apt on the law relating to contempt of court which must be the earliest product of judicial minds in the functioning of the Common Law:

"The question indeed is a momentous one. It is absolutely a question whether the law of the land shall or shall not continue to be properly administered. For it is utterly impossible that the law can be so administered if those who are charged with the duty of administering it have not the power to prevent instances of indecorum from occurring in their own presence. That power has been vested to the judges, not for their personal protection, but for that of the public. And a judge will depart from his bounden duty if he forbears to use it when occasions arise for its exercise. "

In the outcome for the above reasons, on the facts and the said affidavit and on the oral evidence before me, I find Uday Raj Sen guilty of contempt of Court for swearing an affidavit which contains paragraph 12 thereof which is false. In the case of Mr. Kapadia as counsel being instrumental in allowing such an affidavit to be sworn and filed in the High Court Registry I hold that it tantamounts to 'unprofessional conduct' on his part.

In all the circumstances of this case I do not see how the two can escape an order being made against them.

In the result, on Sen I impose a fine of $1000.00 (one thousand dollars) in default 3 months imprisonment to be paid immediately AND as for Mr. Kapadia I refer this Ruling to the Fiji Law Society to note its contents and to take action on this member of theirs in the manner they deem fit AND further as Mr. Nagin has agreed the offending paragraph 12 is ordered to be expunged from record (affidavit). A copy of this Judgment and transcript of the hearing on contempt issue is to be provided to the Society by the Chief Registrar.

D. Pathik
JUDGE

At Suva
9 March 2007