IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC60 OF 2007

BETWEEN:

LAISENIA QARASE AND OTHERS
Plaintiff

AND:

JOSAIA VOREQE BAINIMARAMA AND OTHERS
Defendant

Mr Tevita Fa for the Plaintiffs
Mr C. Pryde and Mr Luke Daunivalu for the Defendants

11th, 22nd June 2007

RULING NO. 2

Gates J

Interlocutory summons to strike out originating summons, Order 18 r.18(i); substantial dispute on fact; court urged to order case to proceed by way of writ of summons; whether defendant prejudiced or embarrassed by form of proceedings; whether abuse of process; whether likely to delay proceedings; challenge to contents of affidavits said to be inadmissible Order 41 r.5(1); approach to in constitutional cases; whether ambit of case and declarations sought too broad; need to avoid overburdensome or oppressive proceedings.

[1] 	On 24th April 2007 the defendants filed an interlocutory summons. In it, they seek to have the originating summons which was filed on 20th February 2007, struck out and to have an order compelling the plaintiffs to proceed instead by way of a writ of summons. It is argued that there will be a substantial dispute of facts in this case, a situation making the originating summons an unsuitable method of proceedings, and one which is stated as being inappropriate by the High Court Rules [Order 5 r.4(2)(b)].

[2] 	The second ground for disapproval it is claimed is that this procedure may cause prejudice or embarrassment for the defendants in making their response to the claim. Further it may cause delay to the proceedings, and the form of proceedings constitutes an abuse of process.

[3] 	Lastly there is complaint made of the affidavits filed so far. It is said they contain evidence that is irrelevant or inadmissible. More particularly the affidavits contain facts that the individual deponent is unable of his own knowledge to prove, which is in breach of Order 41 r.5(1), the rule governing permissible contents of an affidavit.
[4] 	Lastly the defendants say that the reliefs claimed in the originating summons are too broad.

[5] 	Two affidavits were filed in support of the summons both by Ajay Singh of the Solicitor-General’s office. An affidavit in opposition was filed for the plaintiffs by one of the plaintiffs, Peceli Kinivuwai. Ajay Singh set out the objections to the affidavits for the plaintiffs. Unsurprisingly if impermissibly, both deponents dealt with the competing legal reasons as to why each side should succeed in this application.

The Declarations sought

[6] 	The originating summons asks the court to make 12 Declarations. They are:

"1. 	a DECLARATION that the removal of the democratically-elected and constitutionally appointed Prime Minister, his Cabinet, other Ministers, and members of Parliament by the First and Second Defendants by force of arms on or about the 5th December, 2006 was and is unconstitutional and unlawful; 

2. 	a DECLARATION that the usurpation of executive authority and power by the First Defendant on or about 5th December 2006 was unconstitutional and unlawful;

3. 	a DECLARATION that the decisions and actions taken by the First Defendant in the purported exercise of executive authority, including the dissolution of the Parliament, the dismissal of a number of senior Government officials, the dismissal or termination of senior executives of statutory boards, the dismissal of members of statutory Boards and Boards of some Government Commercial Companies, and the placing of the Chief Magistrate on forced indefinite leave are unlawful and unconstitutional, null, void and of no effect;

4. 	a DECLARATION that the reliance by the First and Second Defendants on the doctrine of necessity to justify their removal of the lawful and democratically elected Government of the Republic of Fiji when and in the manner they did were, in all the circumstances prevailing in the country at the time, constitutionally and legally misconceived and unjustified, and therefore contrary to law and the Constitution;

5. 	a DECLARATION that the actions taken by the First and Second Defendants in the purported exercise of their powers and roles contained in the repealed provisions of section 94(3) of the 1990 Constitution is legally and constitutionally misconceived and inconsistent with the Constitution;

6. 	a DECLARATION that the appointment of the first Interim Prime Minister, Dr. Jona Senilagakali, made by the First Defendant in the purported exercise of executive powers and authority of the President, along with the appointments by the first Interim Prime Minister of various persons to certain senior positions in the Public Service were and are unlawful and unconstitutional;

7. 	a DECLARATION that the appointment by the President, on the advice of the First Defendant, as the second Interim Prime Minister and other persons as members of the Cabinet of the Interim Government was and is unconstitutional;

8. 	a DECLARATION that the declaration by the First Defendant of a state of emergency effective from 5 December 2006 and the subsequent promulgation of the Emergency Regulations in the purported exercise of the powers contained in Chapter 14 of the Constitution and the application and continuing application by the Second Defendant of the special emergency powers contained in the said Regulations were and are misconceived in law and fact given the circumstances prevailing immediately prior to the coup and are therefore contrary to law and the Constitution;

9. 	a DECLARATION that the First-named Plaintiff remains the lawful and constitutional Prime Minister of the Republic of the Fiji Islands, and the members of his Cabinet, other Ministers and his Government remain the lawful and constitutionally constituted Government of the Republic of the Fiji Islands;

10 	a DECLARATION that any legislation proposed or promulgated by or under the lawful Interim Government to grant immunity from all criminal or civil liability to the First and Second Defendants and any person who can be proven to have been accessory before or after their treasonous acts, is made contrary to law and unconstitutional, and is null, void and of no effect;

11. 	a DECLARATION that the current Interim Regime cannot rely on the doctrine of effectiveness to ensure its legitimacy, and it remains an illegal regime because its de facto control of the country was imposed and continues to be imposed on the people by force of arms and not by popular acceptance of voluntary acquiescence.

12. 	an ORDER for costs on a solicitor-client basis; "

[7] 	The plaintiffs have filed in support the affidavits of Laisenia Qarase, filed on 29th March 2007, Peceli Kinivuwai filed on 4th April 2007, and that of Josefa Bole Vosanibola also filed on 4th April 2007. The affidavits are substantial and exhibit a large number of documents. The court is yet to receive the defendants’ material which is likely to be voluminous, and may in its turn attract further affidavits in reply from the plaintiffs.

[8] 	In cases of this sort, it is essential that the parties ask the right question of the court in order to arrive at the real nub of the dispute between the parties. Matters not central to the main issue add to the length of proceedings, lead to further preliminary objectons, and put off the day when the court is able to rule on the real contention. Once the court can rule, that decision can in turn be taken through the appellate process until a final decision is arrived at.

Disputed facts

[9] 	In Ajay Singh’s 2nd affidavit filed on 15th May 2007 the deponent indicated the facts stated in Mr Qarase’s affidavit that would be disputed. He referred to the relevant paragraph numbers from that affidavit and said it was disputed:

"6. 	That the general election was held in accordance with the Constitution and the Electoral Act.

9. 	That there was a clear pattern of deliberate and constant opposition against Government.

25. 	That any assurances were given to the First Defendant by Mr Qarase.

26. 	That Annexure LQ12 is a true record of the meeting in Wellington.

42. 	That SDL members of parliament were threatened with physical harm by members of the Second Defendant.

43. 	That SDL members were "hunted down" or subjected to intimidation and humiliating treatment by members of the Second Defendant.

44. 	That the First and Second Defendants were looking to find "a good excuse and time" to overthrow the Government.

46. 	That the election results of 2006 were clear.

49. 	That the First Defendant removed members of the Second Defendant because of advice the First Defendant did not want to hear.

50. 	That the First Defendant is prepared to, or has in fact, ignored the rule of law."

[10] 	Mr Singh said the defendants would raise facts or issues that were not brought up in the plaintiffs’ affidavits, namely:

"i. 	That the manner in which the election held in 2006 was conducted was unlawful.

ii. 	That the SDL Government was complicit in conduct that breached the Constitution and the Electoral Act.

iii. 	That the SDL Government engaged in unlawful activities during the election of 2006 in order to gain power.

iv. 	That the SDL Government was corrupt to the extent that many state institutions were unable to function.

v. 	That the increasing corruption in the public service was undermining the institutions of government and the economy.

vi. 	That the SDL Government was unlawfully interfering with the criminal justice system.

vii. 	That the SDL Government was politicizing many of the state institutions such as the prison system.

viii. 	That the SDL Government actively encouraged racist and inciteful speeches against minority races in Fiji causing fear and tension in minority communities.

ix. 	That the SDL Government requested foreign intervention in the affairs of Fiji.

x. 	That the country was on the verge of economic collapse."

[11] 	It is obvious that there is a wide area of dispute as well as a considerable number of facts which will be disputed in this case. This is quite different from the factual situation in Prasad v A-G [2000] 1 LRC 665 where most of the salient facts were unchallenged.

[12] 	Constitutional cases are sometimes far different in scope from an ordinary contract or landlord and tenant case. Where they encompass a whole range of public events, such cases can present a severe management problem for the court. The tension for the court lies on the one hand, in allowing relevant and fair ventilation of the issues and facts necessary for the decision, and on the other, in keeping the case within timely and manageable proportions for the litigants and for the justice system.

Affidavits: Challenge to contents

[13] 	Challenge is made by the defence to the contents of the plaintiffs’ affidavits. Indeed they have breached the rules in regard to hearsay, and appear to state that of which the deponent has no personal knowledge [Order 41 r.5(1)]. In some places what is stated is non-factual or irrelevant or merely amounts to advocacy with opinions and conclusions proffered. Little weight can be attached to these parts of the material.
[14] 	There were difficulties with the papers filed in Prasad’s case also. I approached it this way (pp672-4):

" The papers filed were much more remiss in Uganda v Comr of Prisons, ex p Matovu [1966] EA 514. In that case two affidavits were filed with defective intitulment, impermissible prayers, without a respondent named for the subsequent execution of habeas corpus orders, and, without a notice of motion or motion paper setting out grounds entitling or relief sought, this last error was said by the court to be ‘so fundamental a defect as to be almost incurable’. The second affidavit had been filed by the applicant’s counsel which was wrong on so many counts that the court said it ‘should have been struck out’. Sir Udo Udoma CJ commented ([1966] EA 514 at 519):

‘Indeed but for the fact that the application concerns the liberty of a citizen, the court would have been justified in holding that there was no application properly before it.’

And the court came to the following opinion as to what to do in the circumstances ([1966] EA 514 at 521):

‘On reflection, however, bearing in mind the facts that the application as presented in the first instance was not objected to by counsel who had appeared for the state; that the liberty of a citizen of Uganda was involved; and that considerable importance was attached to the questions of law under reference since they involved the interpretation of the Constitution of Uganda; we decided, in the interests of justice, to jettison formalism to the winds and overlook the several deficiencies in the application, and thereupon proceeded to the determination of the issues referred to us.’

In dealing with defective applications, breaches of procedure and insufficiency of material in important constitutional cases the courts have taken an enabling rather than a technical approach. In Mokotso v HM King Moshoeshoe II [1989] LRC (Const) 24 at 148 Cullinan CJ, happily also formerly of the Lautoka High Court, said:

‘In this respect I consider that but a technicality precludes the court from conducting the necessary inquiry and that in all the circumstances of this case it is in the interests of justice that this court should be seen to be a court of justice rather than procedure. On that basis therefore I proceed to consider the matter.’

In the concluding paragraphs of his judgment which ran to 169 pages in all, his Lordship said ([1989] LRC (Const) 24 at 168-169):

‘These proceedings have been troubled from the start by defective pleadings. Much against my better judgment, I acceded to requests by both parties to overlook such defects. I have consequently been at pains to construe the pleadings liberally. I have done so in the interests of justice: for the want of such construction, the pleadings could in any event have been amended, entirely without prejudice to the respondents. I have dealt at length with some aspects which, to the legal mind, might appear beyond argument. The first applicant, however, would not seek legal assistance, and I considered myself in fairness obligated therefore to deal with all submissions made. Further, due to the constitutional aspect of the issues raised and the troubled history involved, I thought it best, in the national interest to fully ventilate all grievances, imagined or otherwise.’

I favour the approach adopted by both of these Chief Justices. I overlook defects in the papers, which are largely minor, in the greater interests of the justice of the matter."

[15] 	Though lawyers of seniority have been involved here, I accept the material is voluminous. My approach will be the same in this case as in Prasad. A non-technical approach will be more likely to assist a just end. Greater weight however attaches to the better quality evidence. I will make no order to exclude any part of, or any of the affidavits filed for the plaintiffs so far.

The Declarations: are they too broad?

[16] 	The defendants say the claim is too broad. The breadth of such a case is inevitably a broad one. Declaration 1 seeks a declaration that the forceful removal of Mr Qarase, his Cabinet and the Parliament was unconstitutional and unlawful. By Declaration 9 it is sought that the court declare Mr Qarase still the Prime Minister and his ministers as the Government. I see no difficulties with these declarations.

[17] 	Declaration 2 seeks a declaration that the usurpation of executive authority and power by the First Defendant was unconstitutional and unlawful. This declaration is closely connected with Declaration 1, and is in order for consideration.

[18] 	Declaration 4 raises the doctrine of necessity and Declaration 11 the doctrine of effectiveness. Both declarations ask the court to say that neither doctrine was or is applicable here. Again, these declarations seem relevant and proper for consideration.

[19] 	Declaration 5 raises the question of section 94(3) of the 1990 Constitution. This was the section which had granted the RFMF the overall responsibility "to ensure at all times the security, defence and well being of Fiji and its peoples." The plaintiffs seek a declaration that such a section is inconsistent with the 1997 Constitution. This is an issue that also falls within the main dispute in this case and can properly be accommodated within it.

[20] 	My provisional view is that Declarations 3, 6, 7, 8 and 10 do not fall so neatly within the main conflict. They extend into executive areas, the individual dismissals, the appointment of the first interim Prime Minister, the civil service appointments, the new cabinet, and the now lifted State of Emergency. All of these matters, not being central to the main dispute will only widen the areas of factual dispute and argument and will overburden this litigation. In any event the decision on the main areas of dispute will substantially indicate an approach to the secondary claims, which could be pursued in subsequent litigation if thought necessary.

[21] 	What is important here is that there is fairness. The litigants who must defend themselves against the claims, must be able to do so without facing oppressive proceedings: Davey v Garrett (1877) 7 Ch.D. 473. Second, a case of this nature must be kept within reasonably manageable proportions. Too wide an area of inquiry will merely prove too cumbersome and lead to an overlong trial and consequent delay. This cannot be in the interests of any of the litigants.

[22] 	Undoubtedly there will be many areas of factual dispute in this case. Nonetheless the chief conflict is likely to be over the law. In the circumstances, the most efficacious way to proceed will be on affidavits and to continue with the originating summons. The parties may decide which witnesses they need to have available for cross-examination so that each side will have an opportunity to test the witnesses’ statements on oath.

[23] 	In summary:

(a) 	The plaintiffs succeed in resisting the defendants’ strike out summons in so far as these proceedings will continue now as an originating summons and not by writ. 

(b) 	I will allow the plaintiffs 7 days to amend their originating summons. 

(c) 	There will be no order in respect of the affidavits.

(d) 	Costs will be in the cause. 

[24] 	I shall now discuss with counsel a timetable for the remaining affidavits, other housekeeping matters, and the hearing dates.

A.H.C.T. GATES
ACTING CHIEF JUSTICE

Solicitors for the Plaintiffs: Messrs Tevita Fa & Associates, Suva
Solicitors for the Defendants: Office of the Attorney General, Suva