IN THE HIGH COURT OF FIJI
IN SUVA
CIVIL JURISDICTION

CASE NUMBER: HBC 33 OF 2013

BETWEEN:

LAVINIA PADARATH, PRESIDENT OF THE FIJI LABOUR PARTY
1ST PLAINTIFF

AND:

FIJI LABOUR PARTY
2ND PLAINTIFF

AND:

HIS EXCELLENCY THE PRESIDENT OF FIJI
1ST DEFENDANT

AND:

THE ATTORNEY GENERAL OF FIJI
2ND DEFENDANT

AND:

REGISTRAR OF POLITICAL PARTIES
3RD DEFENDANT

Appearances: Mr. A. K. Singh for the Plaintiffs.
Mr. S. N. Sharma, Ms. R. Mani and Mr. J. Pickering for the Defendants.
Date/Place of Hearing: Monday 11 March 2013 at Suva.
Date/Place of Ruling: Thursday 14 March 2013 at Suva.

Coram: The Hon. Madam Justice Anjala Wati.

RULING

CATCHWORDS:
INTERIM/FINAL INJUNCTION AGAINST STATE IN CIVIL CASES- INTERIM/FINAL DECLARATORY ORDERS AGAINST STATE-RIGHT TO CHALLENGE PROVISIONS OF DECREE UNDER S. 5(4) OF THE ADMINISTRATION OF JUSTICE DECREE 2009.

LEGISLATION:
THE CROWN PROCEEDINGS ACT CAP. 24 ("CPA"): S. 15.
THE ADMINISTRATION OF JUSTICE DECREE 2009 ("AJD"): S. 5.
THE HIGH COURT RULES 1988 ("HCR"): ORDER 32 RULE 2(2).

CASES REFERRED TO:
JOKAPECI KOROI & OTHERS v. COMMISSIONER OF INLAND REVENUE & OTHERS 2 FLR 314.
SILIMAIBAU v. MINISTER FOR SUGAR INDUSTRY [UNREPORTED] FIJI HIGH COURT CASE No. HBC 155 of 2001.
INTERNATIONAL GENERAL ELECTRIC COMPANY OF NEW YORK LTD. AND ANOTHER V. COMMISSIONERS OF CUSTOMS AND EXCISE [1962] 1 CH. 784.
INLAND REVENUE COMMISSIONERS AND ANOTHER V. ROSSMINSTER LTD. AND OTHERS [1980] AC 952.

1.	The plaintiffs' by an originating summons of 13 February 2013 sought various orders against the defendants. The substantive cause was given a court fixture of 11 April 2013. The plaintiffs then filed an inter-partes summons on 26 February 2013 seeking an interim injunction against the 3rd respondent from proceeding with deregistration of the 2nd plaintiff under the Political Parties (Registration, Conduct, Funding and Disclosures) Decree 2013 ("PPRD"). The inter-partes summons was assigned a hearing date of 11 March 2013.

2.	The defendants' filed an acknowledgment of service of the originating process on 25 February 2013. The inter-partes summons was served on the plaintiffs on 7 March 2013.

3.	At the hearing of the inter-partes summons, Mr. Singh informed the Court that he lodged an amended originating summons and the inter-partes summons in the registry which had not been issued. He stated that he did this on 7 March. Mr. Singh stated that he proposes to make an application for leave to amend the originating process and the interim summons. 

4.	Mr. Sharma stated that before any application for leave is considered, the Court must be possessed with the jurisdiction to grant leave to amend. He raised a preliminary issue that this Court does not have any jurisdiction over the substantive and the interim cause and therefore any prospective application for leave cannot be heard. Mr. Sharma urged that the Court hears his preliminary point of law that the substantive cause is outside the jurisdiction of the Court under s. 5(4) of the AJD. Mr. Sharma also stated that the interim application seeking an injunction against the State was prohibited under s. 15 (1) (a) of the CPA.

5.	The plaintiffs' counsel Mr. Singh had made an application for an early date on his interim application and so the Court had to set aside other business and allocate a date for this matter. When the interim summons was before the Court, there was no formal application for leave to amend the summons under Order 32 (2) (2) of the HCR. 

6.	Whether the Court has powers to consider any proposed application for leave to amend the originating summons or give directions to the registry to accept the amended originating summons, the Court must first establish that it has jurisdiction on the existing substantive cause. If the Court does not have any jurisdiction to hear the substantive cause, it cannot to hear any oral or formal application for leave to amend. Hearing the application for leave to amend or giving directions for filing of amended process will tantamount to exercising of jurisdiction. It was therefore prudent that the preliminary issues on jurisdiction be heard and determined. I therefore directed the parties that the preliminary objections be heard by the Court. 

7.	Both counsel indicated that they were prepared to argue the preliminary point of law and the matter was heard.

8.	Mr. Sharma argued that the substantive and the interim application is seeking an injunction against the 3rd respondent from proceeding with deregistration of the 2nd plaintiff under the PPRD. Mr. Sharma stated that any injunctive orders are prohibited against the State under s. 15 (1) (a) of the CPA. 

9.	Mr. Sharma further contended that there is no evidence of any deregistration. He stated that under s. 4 (1) of the PPRD, an existing political party shall continue to operate as a political party for a period of 28 days from the commencement of the said Decree. By virtue of s. 4(2) of the PPRD, where an existing political party seeks to continue to operate as a political party after the expiry of 28 days, it must apply to register as a political party within 28 days from the commencement of the Decree. Under s. 4 (3), if a political party applies within 28 days to register as a political party, it shall from the date when the application is received by the Registrar be deemed to be a proposed political party and that party must not operate or function as a political party after the expiration of 28 days until such time it is registered under the Decree provided however that if the Registrar makes a determination under s. 10(2) that the application by an existing political party to register as a political party should be refused, the Registrar shall wind up any such existing political party. 

10.	Mr. Sharma asserted that the 2nd plaintiff has applied for registration under s. 4(1), notice of which was published in the Fiji Gazette on Wednesday 27 February 2013. Now the due process of taking public objection on the registration will be done. There is no evidence that the 2nd plaintiff would be deregistered at any point in time. It is only after the due process is carried out, will it be evident whether or not the political party will be deregistered. Mr. Sharma says that the plaintiffs, without completion of the due process, cannot speculate that the party would be deregistered. Mr. Sharma says that the application for injunction is misconceived and cannot succeed on merits too.

11.	 Mr. Sharma's further contention was that the substantive cause also seeks an application for declaratory relief that the absence of a transitional and saving provision and the existence of certain provisions in the PPRD are unreasonable in that it violates certain International Conventions and that the unreasonable provisions be severed and or amended to ensure conformity with the International Conventions and that the PPRD be suspended until the implementation of the new Constitution. Mr. Sharma argued that all this, in essence, challenges the validity of the PPRD and the Court having derived its jurisdiction from AJD does not have any jurisdiction under s. 5(4) of the AJD to entertain any application challenging the validity of the PPRD.

12.	Mr. A. K. Singh appearing for the plaintiffs argued that s. 5(4) prohibits challenge to a Decree in its absolute form. It does not prohibit a party from challenging parts of a Decree which is what the plaintiffs' case is all about. Mr. Singh contended that the Decree contravenes International Conventions and the plaintiffs must have some forum in which they have a right to litigate the grievance that arises as a result of the Decree.

13.	In respect to injunctions against a State, Mr. Singh argued that it is not correct that Courts cannot grant injunctions against the State. He relied on two judicial review cases in which injunctions were granted against the officers of the Crown. Mr. Singh also relied on the case of Jokapeci Koroi & Others v. Commissioner of Inland Revenue & Others 2 FLR 314 wherein the Court had granted interim injunction against the Commissioner of Inland Revenue from enforcing any payment of VAT on certain consumable items. 

14.	Mr. Singh also brought to the attention of the Court another case of Silimaibau v. Minister for Sugar Industry [unreported] Fiji High Court Case No. HBC 155 of 2001 to support his contention that since certain provisions of the Decree are contrary to International Conventions, it should be struck out or amended. Mr. Singh argued that in Silimaibau the Court had found that the Sugar Industry (Amendment) Decree 1992 was invalid and of no legal effect and was struck down. 

15.	 I thank both the counsel for their comprehensive submission on the preliminary points of law.

16.	The High Court is established by s. 2 (c) of the AJD. S. 5(4) of the same AJD, prohibits any Court from exercising any jurisdiction in accepting, hearing and determining, or in any other way entertaining, any challenges whatsoever by any person to the validity or legality of any Decrees made by the President from 10 April 2009. 

17.	The substantive relief for declaratory orders that the absence of transitional and saving provision and the existence of some provisions in the PPRD is unreasonable and not in conformity with the International Conventions and thus ought to be severed and the implementation of the PPRD be suspended until the Constitution is implemented, is a direct challenge to the validity of the Decree. 

18.	I do accept Mr. Singh's argument that only an absolute challenge to the Decree is prohibited by s. 5(4) of the AJD. 

19.	I find Mr. Singh's argument unsustainable in light of the robust direction in s. 5(4) of the AJD that "any challenges whatsoever" to the validity or the legality of the Decrees made by the President since April 2009 is prohibited. Mr. Singh's argument would lead to mere absurdity if allowed to stand. Different parties could then come to Court and be allowed to challenge different provisions of the Decree, and if all challenges were allowed, the end result could lead to challenge of the entire Decree. Mr. Singh would well argue that only certain provisions are not valid. The remaining citizens of this country can file another action and seek relief that other provisions which Mr. Singh did not seek to challenge are also invalid. The Court will also have to allow the subsequent challenges under s. 5(4). The sum total of all prospective applications would lead to challenge of the entire decree when it individually may not. I am positive that the enactment of s. 5(4) was to guard against such mischief.

20.	I find that the Courts jurisdiction to entertain any challenge to any provision of the PPRD is ousted by s. 5(4). One cannot ignore the use of the words "or in any other way entertain, any challenges whatsoever…to the validity or legality of any Decrees" … in s. 5(4). I find that the use of such words is very wide to capture any challenge to the decree, be it challenge to one provision or the entire decree.

21.	That leaves me with the application for injunctive relief against the Registrar of the political parties to deregister the 2nd plaintiff as a political party and an order that the 2nd plaintiff continue to operate as a political party. The two relief sought amounts to negative and positive injunction which is clearly prohibited by s. 15 (1) (a) of the CPA which reads:

"… Where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of an injunction, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and…" 

22.	I find the prohibition against granting injunctions against the State so clear and unequivocal that no reasoning is required to make a finding that Mr. Singh's application for injunctive orders against the state must fail.

23.	Mr. Singh's reliance upon the judicial review cases is not helpful as it is established that when prerogative remedies are sought, the courts can grant injunctions against officers of the Crown. This case does not involve a prerogative remedy and so the cases are not applicable. 

24.	The case of Jokapeci Koroi (supra) did not at any occasion deal with s. 15 of the CPA and so is of no assistance to Mr. Singh. Silimaibau's case (supra) did not have a hurdle like s. 5(4) of the AJD and so it does not assist the plaintiffs'.

25.	S. 15(1) (a) of CPA permits grant of declaratory relief in lieu of injunction. S. 15(2) states that " the court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown". 

26.	The question then is whether this Court can grant any interim declaratory orders in lieu of the injunction at this stage. 

27.	The plaintiffs have not asked for any interim declaratory orders in lieu of the injunction and in my view interim declaratory orders against the State are not permissible as any binding declaration of rights can only take a final form. 

28.	Upjohn L.J in International General Electric Company of New York Ltd. and Another v. Commissioners of Customs and Excise [1962] 1 Ch. 784 at 790 considered the aspect of the possibility of an interim declaratory order under s. 21 of the Crown Proceedings Act in England. The provision is similar to our s. 15 of the CPA. The judge stated that:

"…I simply do not understand how there can be such an animal, as I ventured to call it in argument, as an interim declaratory order which does not finally declare the rights of the parties. It seems to me quite clear that in proceedings against the Crown it is impossible to get anything which corresponds to an interim injunction. When you come to the question of final injunction, no doubt a declaratory order may be made in lieu thereof, for that finally determines the rights of the parties. But it seems to me quite impossible to invent some form of declaration which does not determine the rights of the parties but is only meant to preserve the status quo"

29.	Lord Scarman in Inland Revenue Commissioners and Another v. Rossminster Ltd. and Others [1980] AC 952 at 1027 stated that:

"Under existing law only a final and conclusive declaration may be granted by a court. This means that, where the Crown is defendant or respondent, relief analogous to an interim injunction is not available… I gravely doubt the wisdom of interim relief against the Crown…for myself, I find absurd the posture of a court declaring one day in interlocutory proceedings that an applicant has certain rights and upon a later day that he has not".

30.	Can the plaintiffs then maintain their final injunctive relief claim to be substituted with an order for declaration of rights? 

31.	I find the answer in the negative as for one, any declaration of such nature would be analogous to an injunction and still be in contradiction of s. 15(1 (a) of the CPA and for the other reason that in its current form, the substantive cause is not within the jurisdiction of this Court and any amendment of the substantive process to include declaratory orders in lieu of injunction will tantamount to exercising jurisdiction in the case. 

32.	In the final analysis, I find that I do not have jurisdiction to determine the substantive and the interim cause. 

33.	The matter is now referred to the Chief Registrar to raise a certificate of termination under s. 5(5) of the AJD. 

34.	I will now hear the parties on costs.

Anjala Wati
Judge

14.03.2013