Kumar v Chand [2015] FJHC 704; Misc Case 14.2015 (29 September 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

MISCELLANEOUS CASE NO. 14 OF 2015

BETWEEN:

ANAND KUMAR
of Drasa,Lautoka
Plaintiff

AND:

JAGDISH CHAND, of Drasa, Lautoka
Defendant

AND:

SOCIAL WELFARE DEPARTMENT
Nominal Defendant

Counsel : Mr. Aman R. Singh for the Plaintiff
Mr. Krishneel Patel for the Defendant

Date of Hearing :10th August 2015
Date of Ruling :29th September 2015
Before : The Hon. Mr. Justice R. S. S. Sapuvida

RULING

1. This is a constitutional redress action[as the plaintiff's counsel submitted] brought by the plaintiff by way of a notice of motion dated 21 May 2015, pursuant to section 9 and 11 of the Constitution of The Republic of Fiji and under the inherent jurisdiction of this Court to determine whether there has been a breach of constitutional rights of Ms. Dhurpathi (77) who is the mother of the plaintiff and the defendant.
   
2. The plaintiff has filed the said notice of motion in the following style:
   

"Take notice that this Honourable Court will be moved at the Lautoka High Court on 26th day of May 2015, at the hour of 10.30 o'clock in the forenoon or soon thereafter as Counsel for the Plaintiff may be heard FOR AN ORDER that the Plaintiff be granted:

1. Unconditional access to their Mother Dhurpati, who resides with the 1st Defendant.
   
2. The Nominal Defendant to conduct and produce a social welfare report for the current state and wellbeing of Dhurpati, the mother of the Plaintiff.
   

Upon the grounds contained in the Affidavit of ANAND KUMAR, MANJULA DEVI and JAMUNI sworn and filed herein.

This Application is made pursuant to Section 9 and Section 11 of the Constitution of the Republic of Fiji and pursuant to the Inherent Jurisdiction of this Honourable Court."

3. The plaintiff's application is supported by his affidavit dated 30 April 2015, and two other supportive affidavits of Jamuni of Vaivai Lautoka domestic duties, and Manjula Devi of Keleia Sabeto Lautoka, domestic duties dated 15 April 2015 and 30 April 2015 respectively. [The action number mentioned in the affidavits of both Anand Kumar and Jamuni is No. 14 of 2014.]
   
4. It is indeed curious to notice that both the supportive affidavits referred above had been sworn by the respective deponents' long before the date of the plaintiff's notice of motion and the affidavit of Jamuni of Vaivai Lautoka is dated 15 April 2015. Namely a month & a quarter before the date of the plaintiff's notice of motion and 15 days before the plaintiff's affidavit in which the date stated as 30 April 2015.
   
5. Be that as it may, when the matter was first taken up on 26 May 2015 before me, the counsel for the plaintiff Mr. Singh orally submitted that the plaintiff's access to his mother Dhurpathi is obstructed by the defendant and Dhurpathi's constitutional rights are suppressed by the defendant. He then further submitted that the plaintiff has brought the instant application under section 9 and 11 of the Constitution and urged court to issue notice to the defendant. The plaintiff's counsel insisted court that the nominal defendant is ordered to conduct an interview and produce a social welfare report regarding the state of Dhurpathi.
   
6. It was also revealed that Dhurpathi has been living with the defendant who is her elder son for the past 18 years or so and, the plaintiff and the defendant are siblings and living separately in their own houses which are in close vicinity to each other in Drasa, Lautoka.
   
7. Having a dilemma in my mind as to how Dhurpathi's constitutional rights are violated by her son defendant, while Dhurpathi is living with him, I enquired from Mr. Singh with somewhat perplexity as to how this matter could be well considered under redress, and he then continued with his oral submissions with deep sense of sureness that the plaintiff will be successful in this application.
   
8. Having honored the plaintiff's right to prosecute the matter, I made the initial directions as prayed for by the plaintiff by issuing notice to the defendant allowing him to file his response and the nominal defendant to produce a report regarding the state of Dhurpathi as well.
   
9. The plaintiff's application is intensely opposed by the defendant.
   
10. Dhurpathi was present before me when the matter was called to see the progress of the social welfare report and moreover, she caused to submit her affidavit in support of her elder son's testimony with regard to the matter at issue here.
    
11. Nevertheless, since the matter before me is a dispute between/among two brothers and their 77 year old mother inoffensively at another corner, I exhausted my utmost dynamisms to see an end to the matter by way of an amicable settlement among them, and yet was finally became a wild goose chase due to the parties mainly the plaintiff wanting a final ruling from the court.
    
12. Hence, the matter was finally fixed for hearing, where both counsel agreed upon to conclude the hearing with written submissions.
    
13. The defendant has filed his written submissions dated 15 September 2015, but the plaintiff has not filed any further submissions except Mr. Singh's oral submissions he made at the very outset.
    
14. The plaintiff has brought the instant application by way of his notice of motion as submitted by his counsel pursuant to section 44 of the Constitution of the Republic of Fiji and Rule 3 of the High Court (Constitutional Redress) Rules 2015 seeking the following reliefs:
    
    1. Unconditional access to his mother Dhurpathi who resides with the 1st defendant;
       
    2. The nominal defendant to conduct and produce a Social Welfare report for the current state and wellbeing of Dhurpathi, the mother of the plaintiff and the defendant.
       
15. The plaintiff's application is supported with his affidavit, his sister Manjula Devi's affidavit and his aunt Jamuni's affidavit as I have already referred in paragraph 3 above.
    
16. However, since the affidavits filed in support of the plaintiff's case have sprung in April 2015, the facts contained in these affidavits cannot have any bearing to the plaintiff's present application for the reason that as I have already remarked on this matter at paragraph 3 and 4 above, deponents of those affidavits including the plaintiff, had settled these affidavits well before the pleading were settled and interestingly the supportive affidavits had been prepared well before the application of redress was brought before the Court.
    
17. Leaving it as that, since the plaintiff brought this application under Rule 3 of HCCRR 2015, he must reveal a specific period of time in which the course of action he brought before the Court was arose.
    
18. According to the section 3 (2) of the HCCRR 2015, an application in this nature under section 44 of the Constitution must not be admitted or entertained after 60 days from the date when the matter at issue first arose unless a Judge finds there are exceptional circumstances and that it is just to hear the application outside of that period.
    
19. Therefore the plaintiff must state in his application an exact period or date when the matter at issue was first arose, which has not been complied with by the plaintiff here.
    
20. It is a common fact that the applicant's mother, Dhurpathi has been living with the defendant for over eighteen (18) years. The plaintiff or any other deponents who have submitted their affidavits as aforesaid do not mention an exact period from which Dhurpathi was first deprived of her constitutional rights. Moreover the plaintiff does not refer to which particular provision he is relying on in relation to section 44 of the Constitution or to section 9 and 11 of the Constitution.
    
21. The section 44 of the Constitution provides enforcement provisions for any contravention of the bill of rights of an individual. Section 44 states:
    

"44.-(1) If a person considers that any of the provisions of this Chapter has been or is likely to be contravened in relation to him or her (or, in the case of a person who is detained, if another person considers that there has been, or is likely to be, a contravention in relation to the detained person), then that person (or the other person) may apply to the High Court for redress."

22. The plaintiff has brought the instant application for the alleged contravention of his mother Dhurpathi's rights under the Constitution. There are various allegations leveled against the defendant in the plaintiff's affidavit which purport to show that Dhurpathi was maltreated and restrained against her own will to live freely. The allegations contained in the affidavit of the plaintiff among other things are:
    
    1. The defendant has ill-treated his mother, Dhurpathi on various occasions.
       
    2. That the defendant has also made Dhurpathi to do house chores against her will threatened and intimidated her against having contact with plaintiff and Dhurpathi's family members.
       
    100. That plaintiff believes that Dhurpathi is also deprived of her medical care.
         
    4. That plaintiff fears for Dhurpathi's wellbeing and health as he believes that she has been ill treated by the defendant.
       
23. The affidavit of Manjula Devi and Jamuni filed in support of the plaintiff's application reflect the very same allegations which are found in the plaintiff's affidavit. It is quite surprised to see that the affidavit of Jamuni had been prepared and was sworn on 15th April 2015, because even the plaintiff had not settled his own affidavit by the time Jamuni had, fifteen (15) days before the plaintiff's affidavit been prepared and sworn. Therefore I find that the facts deposed in the affidavits of Jamuni and Manjula Devi are plainly fabricated, frivolous and vexatious and cannot be any bearing in support of the plaintiff's application.
    
24. It is pertinent to look at the facts revealed by Dhurpathi in her affidavit by which she confesses herself that she is happily living with the defendant at his home without any restraint and out of her own free will. That statement itself is uncontroverted evidence and cannot be challenged as it is her own testimony. Furthermore her testimony to that fact is corroborated by the Social Welfare department's report which is the nominal defendant in this proceedings. The Social Welfare report was called by the plaintiff in order to substantiate his allegations and provide evidence to establish his case on the contravention of Dhurpathi's constitutional rights which finally has ricocheted towards him.
    
25. The Social Welfare department submitted a report dated 21 July 2015 prepared by Mr. K. Sahai, the Senior Welfare Officer attached to the nominal defendant. The same is now part of the case record date stamped by High Court registry on 22 July 2015.
    
26. Dhurpathi at the interview conducted by the Social Welfare officer further revealed the following:
    
    1. That she is properly taken care of by defendant and family with food and other personal needs.
       
    2. That the defendant takes her to the doctor when she is sick.
       
    100. That defendant takes her to visit her relatives and daughters Bimla Devi in Tavarua, Ba.
         
    4. That the house occupied by plaintiff is her matrimonial house and she was at a time chased out of this house by plaintiff's wife.
       
    5. That she is not aware of what really happened between her sons and moreover why they are not in good terms with each other, and so on.
       
27. In addition to the above evidence revealed contrary to the plaintiff's allegations levelled against the defendant, the Welfare officer has provided his own assessment and observations that Dhurpathi was feeling tensed and frustrated during the interview and furthermore she has mentioned in the Hindustani language "hume e umar me hamarladka Anand Court me lege" which translates into English as "my son Anand took me to Court at this age".
    
28. I find that the report furnished by the Social Welfare Department is unbiased and independent. The plaintiff does not oppose to the facts revealed in the report. All in all the entire Social Welfare report is contrary to the allegations leveled by the plaintiff. The Social Welfare report reveals no breach of Dhurpathi's constitutional rights. The affidavits provided by the plaintiff in support of this matter are false and inconsistent with the interview statements of Dhurpathi had with the Social Welfare Department officer. On the contrary the report reveals that Dhurpathi has been looked after well, her medical needs have been provided for, by the defendant and Dhurpathi was totally comfortable with her son (defendant).
    

29. The findings made in the Social Welfare report are adverse to the plaintiff's case. Dhurpathi in her affidavit and in her interview statement made to the Social Welfare officer, states that she is happily living with defendant, and at a time she was chased out of the house of the plaintiff by the plaintiff's wife, but not by the defendant or any other.

30. Hence, it is reflected from the plaintiff's application that, the plaintiff is either misconceived or has untruthfully brought this application for redress, where the plaintiff is purportedly seeking reliefs for the breach of Dhurpathi's constitutional rights whilst in fact the relief sought by the plaintiff in his application is for his unconditional access to Dhurpathi which is irrelevant and does not cover Dhurpathi's constitutional rights for which even Dhurpathi herself does not ask for.

31. Having scrutinized the evidence revealed from the submissions of both parties, and the other thorough sources aforementioned and discussed, I decide that no breach of Dhurpathi's rights has been established or proved by the plaintiff and therefore, the plaintiff's application has no base to survive.

32. For the foregoing reasons I make the following orders:

(a) The plaintiff's notice of motion dated 21 May 2015 is struck out and dismissed with costs.

(b) The plaintiff shall pay taxed costs to the defendant unless agreed upon by the parties.

R. S. S. Sapuvida
Judge

Dated on this 29th day of September 2015 at Lautoka

Solicitors: Aman Ravindra Singh Lawyers for the plaintiff
A. K. Lawyers for the defendant