State v Public Works Tender Board, ex parte Bright International Ltd [2008] FJHC 243; HBJ42.2007 (30 September 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO.: HBJ 42 OF 2007

BETWEEN:

THE STATE

v

PUBLIC WORKS TENDER BOARD
Respondent

EX-PARTE:

BRIGHT INTERNATIONAL LIMITED
Applicant

Mr. H. Nagin for Applicant
Ms N. Karan for Respondent

DECISION

[1] On 15th February 2008 when granting leave to the applicant to apply for judicial review, I had ordered that the respondent was restrained from opening or accepting any tenders for the construction of the sterile and cytotoxic manufacturing unit at CWM Hospital until the determination of the case.

[2] On 19th March 2008 I had delivered a judgment in the substantive matter. I had ordered the Public Tender Board to advertise fresh tenders if it wished to continue with the work for the construction of sterile and cytotoxic unit at CWM Hospital. I had also ordered that all tenders already received are to remain unopened until the new tender period had expired. This decision is to be read in conjunction with my previous judgment.

[3] The applicant now alleges that on 20th February 2008, the Public Works Tender Board had opened the tenders in violation of the stay order. He therefore seeks a mandamus, a remedy I had refused at the substantive hearing.

The response of the respondent is contained in the affidavit of Anand Kumar, the Permanent Secretary for the Ministry of Works and Transport sworn on 19th May 2008. He deposes that at the time the tenders were opened on 20th February 2008, the Public Works Tender Board was unaware of the stay order made on 15th February 2008. If I may say so at this stage, the stay order of 15th February 2008 was made in the presence of the counsel for the respondent.

[4] Anand Kumar further deposes that even though the tenders were opened on 20th February 2008 (in violation of court order), none of the tenders were accepted so there was no prejudice to the applicant. In short the respondent is stating one can defy court orders if one thinks there is no prejudice to the other party. If I may say so, there is always prejudice to the administration of justice to consider as well. It is a plain and unqualified obligation on every person against whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged even if one believes the order is irregular or null and void: Hadkinson v. Hadkinson – (1952) 2 ALL ER 567 at 569.

[5] Mr. Nagin submitted that I should order mandamus or damages because of the conduct of the respondent in undermining the process of court. This criticism is entirely understandable and fair. To say that the Permanent Secretary the most senior and powerful person within a Ministry was unaware of a court order made in the presence of his counsel five days earlier is unbelievable. On 15th February a stay order was granted; five days later tenders are opened. On 28th February 2008, on the hearing day no one mentioned that tenders had been opened. Both the court and the counsels proceeded on the basis that the stay order had been complied with.

[6] Later still when judgment went against the respondent, it stated that it is not going to call for further tenders but get PWD to carry out the work due to its urgency. Yet four months later that urgency evaporated like the morning mist before the summer sun. The respondent informed the counsel that the project is not on the priority list. The applicant has termed this as deceitful conduct for which respondent should pay damages.

[7] I have my sympathy for the applicant but because I had already given my judgment on 19th March 2008, I am functus so I cannot reopen the proceedings now.

[8] The apparent ease and abandon with which the respondent has conducted itself is of concern to the court. In a Swaziland case where court orders were flouted Justice Masuku concluded his judgment about possible consequences which can flow from disobedience of court by those in power. He stated:

"I find it appropriate to throw a word of caution regarding this and other related matters that have been enrolled in this Court and in which it appears that there is a flagrant disregard and disdain, if not overt disobedience of Court Orders perceived to be unpalatable. This is a recipe for lawlessness. The road to chaos does not begin with gargantuan leaps but a few steps in the direction of willful disobedience of Court Orders, particularly by State agents, who are not only to be exemplary in their conduct but are actually custodians and enforcers of the law, including Orders of Court. No efforts should be spared in ensuring that the rule of law, about which so much has been said, is observed, for therein does the peace and prosperity of this country and its economy in great measure lie. The road to anarchy is a one-way street and a return to normalcy may well nigh be impossible. If you sow seeds of disobedience of Orders of Court, you reap anarchy, a fruit that not one can enjoy, including those who sowed those seeds.": Fakudze v. Swaziland Government & Another – Civil case 2815 of 2001.

[9] I dismiss the application but make no order as to costs. For sake of completeness so no misconception can arise, I must say that the conduct of the respondent’s counsel has been beyond reproach. She was placed in a difficult situation but she acted with candour.

[Jiten Singh]
JUDGE

At Suva
30th September 2008