Mau v Fiji Independent Commission Against Corruption [2014] FJHC 785; HBC264.2014 (29 October 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Case No: HBC 264/2014
(Criminal Case No: HAC 005/2010)

IN THE MATTER of the Constitution of the Republic Of Fiji

AND

IN THE MATTER of Sections 14(1) (D), 15(1), 26(1) and 26(2) of the Constitution of the Republic of Fiji

BETWEEN :

1. TEVITA PENI MAU
1ST APPLICANT

2. DHIRENDRA PRATAP
2ND APPLICANT

AND:

1. FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION
1ST RESPONDENT

2. THE ATTORNEY GENERAL
2ND RESPONDENT

COUNSEL: Applicants in Person
: Mr N Chand and Ms S Ali for the Respondents

Dates of Hearing: 24-27/10/2014
Date of Ruling: 29/10/2014

RULING

[01] The 1st Applicant and 2nd Applicant (hereinafter referred to as "the Applicants") on the 1st day of August 2014 filed a Notice of Origination Motion under case No: HBC 216 of 2014 to be supported by their counsel to obtain the following relief:

1. A declaration that the State breached Section 14(1) (d) of the Constitution of Fiji.
   
2. A declaration that the State breached Section 15(1) of the Constitution of Fiji.
   
3. A declaration that the State breached Sections 26(1) and 26(2) of the Constitution of Fiji.
   
4. A declaration that their right to counsel and right to counsel of their choice, which are minimum guarantees provided by article 14(1)(d) of the Constitution and under International Law such as article 14(3) (b) and (d) of the International Convention for Civil and Political Rights (ICCPR) have been breached.
   
5. Such further or other relief as the Court deems just.
   

[02] When the matter came before Hon P Madigan J on 15th day of August 2014, the Originating Notice of Motion was struck out of want of prosecution.

[03] On 10th September 2014 the Applicants under Case No: HBC 264 of 2014 filed Notice of Originating Motion to reinstate their Motion for Constitutional Redress that was struck out on 15th August 2014. The new Originating Summons under case No: 264 of 2014 were properly served to 1st and 2nd Respondent (hereinafter referred to as "the Respondents").

[04] The Respondents filed summons on 24th of October 2014 to seek following orders:

1. THAT the Applicants application filed on 10th September 2014 be wholly struck off on the following grounds:
   
   1. The Applicant(s) application discloses no reasonable cause of action against the 1st and 2nd Respondents;
      
   2. The Applicant(s) application is misconceived, premature, scandalous, frivolous or vexatious, in that no rights of the Applicant(s) has been infringed under Constitution of Fiji and the application being merely hypothetical;
      
   100. The Applicant(s) application is an abuse of the process of the Court, in that criminal proceedings against the Applicant(s) before this Honourable Court provides an adequate alternative remedy to raise all issues to the Applicants(s) right to counsel of their choice.
        
2. THAT the Applicant(s) application be wholly struck out with costs on full indemnity basis.
   

[05] The Respondents made their application pursuant to the Order 18 Rule 18 (1) (2) & (3) of the High Court Rules 1988 and the Inherent Jurisdiction of the High Court.

Background Facts
[06] The Applicants have been charged for Extortion, abuse of office and giving false information to a public servant by Fiji Independent Commission Against Corruption (hereinafter referred to as "FICAC") under criminal case No: HAC 005 of 2010. The information was first filed on 28th January 2010 and it was amended on 23rd July 2010 by the FICAC. While the case was pending another accused namely Mahendra Motibhai Patel has gone to Australia in violation of his bail conditions. As he has not returned to Fiji, the court on 28/02/2014 pursuant to article 14 (h) of the Constitution of the Republic of Fiji decided to try in absentia of Mahendra Motibhai Patel.

[07] When the matter was mentioned again on 06/05/2014, Mr H Nagin appeared for Mahendra Motibhai Patel and Ms B Malimali marked her appearance for the Applicants in this case. On that date the court informed the counsels that the trial would be taken up either in October or November of 2014. At that time counsel for the Applicants did not inform the court that the proposed months for trial would not be suitable to her. Hence the matter was adjourned to 02/07/2014. On 02/07/2014 Ms B Malimali informed this court that the month of November is not suitable to her. Hence she wanted to withdraw from the case. Her application was allowed and both the Applicants were given time up to now to arrange for their counsel.

[08] The Applicants not arranging their counsel straight away filed the Application for Constitutional Redress on 01/08/2014. When the matter came for support before Hon P Madigan J on 15/08/2014 no counsel appeared on behalf of the Applicants. Then the matter was struck out of want of prosecution. The Applicants now filed this application and seek reinstatement of their motion on Constitutional Redress.

[09] The Applicants main contention is that their right to counsel of their choice, which guaranteed under article 14(1) (d) of the Constitution, has been infringed. After the withdrawal of Applicants' counsel Ms B Malimali, the Applicant up to now had not taken any endeavour to arrange a new counsel. Ms B Malimali withdrew from the case as the trial dates are not suitable to her. Courts time tables are set according to the court's calendar. But the court always tries its best to fix cases according to the counsel's diary. Counsels are not at liberty to direct the court when they can be accommodated. Every legal counsel owes a duty to the judicial system as an officer of the court to cooperate with the court's timetable. Further the Court has the inherent jurisdiction to control its own process.

[10] On 06/05/2014 when the Court informed the counsels that the trial would be commenced either in the month of October or November the Applicants' counsel Ms B Malimali did not indicate to this court that the suggested time period is not suitable to her. She withdrew from the case on 02/07/2014. Two months after the court's announcement. Now the Applicants are trying indirectly to fix this case according to the diary of Ms B Malimali.

[11] Counsel of choice need not be limited to a particular counsel. There are many counsels available. Ms B Malimali is not the only criminal defence counsel in Fiji. Whoever the counsel of their choice, he/she should be available first and must work and respect the court's time table. As no dispute exists of bringing to court the counsel of their choice, the application of the Applicants before this court is purely to undermine and frustrate the criminal proceeding.

[12] Further the Applicants have failed to consider the alternative remedy available to them under the provisions of the Constitution. In Abhay Kumar Singh v The Director of Public Prosecutions and the Attorney-General Appeal No: AAU003 of 2003-Tab 3, page 3, Shameem J stated that:

"The High Court may exercise its discretion not to grant relief in relation to an application or referral made to it under this section if it considers that an adequate alternative remedy is available to the person concerned".

[13] The Respondents submit that this court is empowered to summarily dismiss an application for Constitutional Redress if one of the ground set out in Order 18 r.18 of High Court Rule 1988 are met. Order 18 r.18 authorises a summary dismissal of a proceeding where:

a) The proceeding does not disclose a reasonable cause of action or defence, as the case may be; or

b) It is scandalous, frivolous, or vexatious; or

c) It may prejudice, embarrass or delay the fair trial of the action; or

d) It is otherwise an abuse of the process of the court.

[14] The Applicants allegation and claims that the State has unlawfully denied them their Constitutional rights is without any factual basis and; there is no cause of action against the Respondents. The whole exercise of the Applicants' is to undermine and frustrate the criminal proceedings.

[15] Considering all the materials placed before this court, the Applicants application discloses no reasonable cause of action against the Respondents. Hence this court does not have jurisdiction to deal with or grant relief sought by the Applicants in the Notice of Originating Motion dated 10th September 2014. The Applicants application is wholly misconceived, premature, scandalous, frivolous or vexatious, and is an abuse of the process of the court.

Result
[16] I make the following orders:

(i) The Applicants Notice of Originating Motion filed on 10th September 2014 is dismissed and struck out for want of jurisdiction;

(ii) Although the Applicants' application for Constitutional Redress ought to have been a civil proceeding it related to a criminal matter. In the circumstances I order no cost.

P Kumararatnam
JUDGE

At Suva
29/10/2014