Matanitobua v Fiji Independent Commission Against Corruption (FICAC) [2022] FJHC 34; HACDA009.2021S (4 February 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
ANTI CORRUPTION JURISDICTION

CRIMINAL APPEAL CASE NO. HACDA 009 of 2021S

BETWEEN:

1. RATU SULIANO MATANITOBUA

2. NIKOLAU NAWAIKULA
3. PECELI WAQAIRATU VOSANIBOLA
4. SALOTE VUIBURETA RADRODRO
5. ADI LITIA QIONIBARAVI
   

APPELLANTS

AND:

FIJI INDEPENDENT COMMISSION AGAINST
CORRUPTION (“FICAC”)

RESPONDENT

Counsel: Mr. S. Valenitabua for the Applicants
Mr. R. Aslam with Mr. D Hicks for the FICAC
Date of Hearing: 31^st January 2022
Date of Ruling: 04^th February 2022
_____________________________________________________________________________________

RULING
(On Appeal Jurisdiction)

_____________________________________________________________________________________

Introduction

1. The five Appellants (hereinafter referred to as Appellants) were initially charged in the Magistrate’s Court of Suva, in five separate proceedings, with one count of False Information to Public Servant, contrary to Section 201 (a) of the Crimes Act and one count of Obtaining Financial Advantage, contrary to Section 326 (1) of the Crimes Act. The Appellants had pleaded not guilty to the two counts on the 25th of January 2021. Subsequently, the Prosecution had made an application to transfer these five matters to the High Court. The learned Magistrate, having heard the submissions made by the parties, had transferred these five cases to the High Court pursuant to Sections 188 (2) and 191 of the Criminal Procedure Act. Being aggrieved with the said ruling of the learned Magistrate, the Appellants filed this appeal.
   
2. On the 24th of January 2022, this Court directed the parties te submissions on the issue of the jurisdiction to hear this appeal. Accordingly, the learnlearned Counsel for the Appellants and the Respondent filed their respective written submissions as per the directions. The Court heard the oral submissions of the learned Counsel for the Appellants and the Respondent on the 31st of January 2022. Having carefully perused the respective written and oral submissions of the parties, I now proceed to pronounce the ruling on the issue of jurisdiction.
   

bmissimissions of the Appellants

3. The learned Counsel for the Appellants submitted that the Appellants have the right ight of appeal against the order of the learned Magistrate in terms of Sections 246 (1) and (7) of the Criminal Procedure Act. The said order of the learned Magistrate does not fall within the limitation as stipulated under Section 246 (7) of the Criminal Procedure Act; hence, this Court has jurisdiction to hear and determine this appeal.
   
4. The learned Counsel for the Appellants further submitted that Section 246 (7) of the Criminal Procedure Act encoes two limbs. The first limt limb applies to orders made by the Magistrate before the actual trial of the accused commences. The second limb covers the orders which are made by the Magistrate after the commencement of the trial but before the accused is convicted and sentenced. According to the learned Counsel for the Appellants, the learned Magistrate had made the transfer order before the commencement of the trial. Therefore, the said impugned order of transfer made under Sections 188 (2) and 191 of the Criminal Procedure Act comes within the ambit of the first limb. Hence, the limitation stipulated under the second limb does not apply. Having submitted that, the learned Counsel for the Appellants urged that this Court has jurisdiction to hear this appeal.
5. In addition, the learned Counsel for the Appellants invited the Court to hear this appeal under the revisionary power as stipulated under Section 100 (6) of the Constitution.
   

6. The Court heard the submissions of the learned Counsel for the Respondent. The learned Counsel for the Respondent stated that the learned Magistrate had not determined the rights of the Appellants in this order of transfer; thus, the Appellants have no right to appeal to the High Court against the said order according to Section 246 (7) of the Criminal Procedure Act.

The Law Law and Analysis

7. Section 246 (1) of the Criminal Procedure Act states that a person has a right to appeal to the High Court against any judgment, sentence or order of a Magistrate’s Court made in any criminal case. Section 246 (1) of the Criminal Procedure Act states that:

“Subj;Subject to any provision of this Part to the contrary, any person who is dissatisfied with any judgment, sentence or order of a Magistrates Court in any criminal caustrial to which he or she ishe is a party may appeal to the High Court against the judgment, sentence or order of the Magistrates Court, or both a judgment and sentence.”

8. Section 246 (7) of the Criminal Procedure Act has further elaborated the right of appeal to the High Court against the orders of the Magistrate made in any criminal proceedings in the Magistrate’s Court. Section 246 (7) states that:
   

“An order by a court in a case may be the subject of an appeal to the High Court, whether or not the court has proceeded to a conviction in the case, but no right of appeal shall lie until the Magistrates Court has finally determined the guilt of the accused person, unless a right to appeal against any order made prior to such a finding is provided for by any law.”

9. I shall now draw my attention to determine whether the interpretation proposed by the learned Counsel for the Appellants is the correct interpretation of Section 246 (7) of the Criminal Procedure Act.
   
10. Maxwell on the Interpretation of Statues states [11th ed. at p. 3]
    

“The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and, otherwise, in their ordinary meaning, and the second, that the phrases and sentences are to be construed according to the rules of grammar. ...If there is nothing to modify, nothing to alter, nothing to qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences.”

11. Bindra’s Interpretation of Statues (12th Edition, at p 205) had explained the appropriate approach in interpretation of statutes where it states that:
    

“The legislature is a proverbial good writer in its own field, no matter that august body is subject to periodic criticism. It is not competent for the court to proceed on the assumption that the legislature knows not what it says, or that it has made a mistake. We cannot assume a mistake in an Act of Parliament. If we think so, we should render many Acts uncertain by putting different constructions on them according to our individual conjectures. The draftsman of the Act may have made a mistake. If so, the remedy is for the legislature to amend it. The legislature is presumed not to have made a mistake even if there is some defect in the language used by the legislature, it is not for the court to add to or amend the language or by construction make up deficiencies which are left in the Act.”

12. In view of the rules of interpretation mentioned above, the Court must approach the interpretation of statutes honouring the wisdom of the legislature. In the same vein, the Court must give the literal meaning of the words in interpreting Section 246 (7) of the Criminal Procedure Act.
13. Section 246 (7) of the Criminal dure Act consists of two main components. The first component has defined the scope of the the right of appeal to the High Court against the orders of the Magistrate’s Court. Accordingly, any order of the Magistrate’s Court can be appealed to the High Court, notwithstanding the Magistrate's Court has proceeded to a conviction in that matter or not. Hence, the right of appeal against the orders of the Magistrate’s Court is not limited to any specific or certain orders. The second component states when the right of appeal to the High Court could be exercised. Accordingly, the right of appeal to the High Court can be exercised after the Magistrate’s Court has finally determined the accused's guilt. Consequently, the existence of the final determination of the guilt of the accused in the Magistrate’s Court is the sine qua non to invoke the appellate dicisdiction of the High Court against the judgments, sentences or orders of the Magistrate’s Court.
    
14. In view of thef the above reasons, I find the interpretaof Section 246 (7) of the Criminal Procedure Act, proposed by the learned Counsel for the Athe Appellants, is a misconceived equitur.
    
    
The ord the learned Magistrate made pursuant to Sections 188 (2) and 191 of the Criminal Procedureedure Act falls within the meaning of "any order' as stipulated under Section 246 (1) and (7) of the Criminal Procedure Act. Hence, the Appellants have the right to appeal against the learned Magistrate's said order.

16. Having concluded that, I shall now proceed to determine whether the Appellants are allowed, under Section 246 f the Criminal Procedure Acre Act, to exercise their right of appeal against the said impugned order at this stage of the proceedings.
    
17. The learned Counsel for the Appellants relied heavily on State v Chand [2015] FJCA 64; AAU0085.2012 (28 May 2015), submitting that the approach adopted in State v Chand (supra) applies to this matter. In State v Chand (supra), the Fiji Court of Appeal found that an order of the Magistrate’s Court made under Section 169 (2) of the Criminal Procedure Act does not fall under the limitation of Section 246 (7) of the Criminal Procedure Act. Hence, a party aggrieved with such an order made under Section 169 (2) of the Criminal Procedure Act may appeal to the High Court under Section 246 (1).
    
18. The Fiji Court of Appeal in State v Chand (supra) reached the above conclusion on the basis that the order made under Section 169 (2) of the Criminal Procedure Act has brought the proceedings in the Magistrate’s Court to the conclusion. The order made under Section 169 (2) of the Criminal Procedure Act has effectively changed the status of the accused. Upon the said order, the accused is no longer considered an accused charged with an offence. His liberty will be restored. That order has brought the proceedings in the Magistrate’s Court to the end, concluding the process of determination of the guilt of the accused.
    
19. It is prudent to determine whether the effects of the transfer order made by the learned Magis according to Sections 188 (2) and 191 of the Criminal Proc Procedure Act are similar to the orders made under Section 169 (2) of the Criminal Procedure Act.
    
20. Division 3 of Part 13 of the Criminal Procedure Act deals with transferring accused persons to the High Court. The learned Magistrate is required to fix a date, not exceeding 28 days from the date of the order of transfer, for the accused to appear in the High Court when he made an order to transfer the matter to the High Court ( vide; Section 195 of the Criminal Procedure Act). Upon the accused's first appearance, the High Court must proceed to arraignment if the accused had pleaded not guilty or reserved his plea in the Magistrate’s Court. (vide; Section 196 of the Criminal Procedure Act ).
    
21. Accordingly, the transfer order of the learned Magie does not have the effect of bringing the proceeding against the Appellants in respect of t of the offences that they are charged with to the conclusion. The said order does not change the Appellants' status as they remain as persons accused of the same offences. Therefore, the transfer order of the learned Magistrate has not concluded the proceedings against the Appellants. It has only changed the forum of the proceedings, transferring the proceedings to the High Court. Subsequent to the transfer order, the matter becomes the proceedings in the High Court. It is no longer considered a criminal cause or trial in the Magistrate’s Court.
22. Moreover, the learned Magistrate ceased to preside over the proceedings as a result of the transfer order. Hence, the Magistrate’s Court will not be able to determine the guilt of the Appellants as stated under Section 246 (7) of the Act. The ed Counsel for the Appe Appellants further submitted the Appellants are now allowed to appeal against this order under Section 246 (7) of the Act on the basis the learned Magistrate is no longer presiding over the mattematter.
    
23. Bindra’s Interpretation of Statues (12th Edition, at p 208-209) states that:
    

“The legislature is deemed not to waste its words or to say anything in vain. The presumption is always against superfluity in a statute. An Act should be construed as to avoid redundancy or surplusge...A construction which would render the provision nugatory ought to be avoided.”

24. In view of Bindra's interpretation rules, the Court must avoid making any provision of the Criminal Procedure Act redundant or superfluous in interpreting Section 246 (7) of the Act.
    
If the Court accepts the contention forwarded by the learned Counsel for tpellants, the Appellants are now allowed to exercise their heir right to appeal to the High Court against this impugned order; the second component of Section 246 (7) of the Act would undoubtedly become redundant and superfluous. Hence, such an approach of interpretation is indeed inconsistent with the laws of interpretation.

26. As I said above, the proceedings had not concluded as a result of the transfer order o learned Magistrate. It has neither changed the Appellants'ants' status nor the nature of the charges. The transfer order only changed the forum, giving the cause the status of the proceedings in the High Court. Accordingly, I could safely form my conclusion based on two parts. The first part is that the Appellants have the right to appeal against the transfer order of the learned Magistrate made under Sections 188 (2) and 191 of the Criminal Procedure Act. The second part of the conclusion is that the Appellants are not allowed pursuant to Section 246 (7) of the Criminal Procedure Act to exercise their right to appeal against the said order of the learned Magistrate at this stage of the proceedings.
    
27. Indeed, the Appellants have the right to exercise their right of appeal against the saidr of the learned Magistrate at the appropriate forum and thnd the appropriate time. This is neither the time nor the place to determine the appropriate time and the place for them to exercise their right to appeal against this impugned order of the learned Magistrate. Hence, I leave that important issue of law to be determined appropriately in an appropriate future proceedings.
28. I now draw my attention to the isf supervisory power of the High Court. The learned Counsel for the Appellants submitted thad that pursuant to Section 100 (6) of the Constitution, this High Court has the supervisory jurisdiction to hear this appeal and grant an order staying the proceedings of the substantive matter.
29. Section 100 (6) of the Constitution states that:
    

“The High Court has jurisdiction to supervise any civil or criminal proceedings before a Magistrates Court or other subordinate courts and may, on an application duly made to it, make such orders, issue such writs and give such directions as it considers appropriate to ensure that justice is duly administered by the Magistrates Court and other subordinate courts” (underline is mine)

30. According to Section 100 (6) of the Constitution, the supervisory jurisdiction of the High Court could invoke only on an application duly made to it. Division 2 of Part 15 of the Criminal Procedure Act has stipulated the procedure and the revisionary power of the High Court.
    
31. Section 262 (1) of the Criminal Procedure Act states that:
    

"In the case of any proceedings in a Magistrates Court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—

i) in the case of a conviction, exercise any of the powers conferred on it as a

• court of appeal by sections 256 and 257; and

ii) in the case of any order other than an order of acquittal, alter or reverse such

• order,
  

32. Accordingly, the revisionary jurisdiction of the High Court could be invoked if the record of the Magistrate’s Court has been called for, a Magistrate has reported to the High Court under Section 261 of the Criminal Procedure Act, or the High Court came to know about the record of Magistrate Court in some other way.
    
33. Keith JA in Nadan v State [2019] FJSC 29; 07.2019 (31 October 2019) had discussed the manner of invoking the revisionary powe power of the High Court under Section 262 (1) of the Criminal Procedure Act. In that case, the learned Magistrate had transferred the matter to the High Court for sentencing pursuant to Section 190 of the Criminal Procedure Act. Keith JA in Nadan v State ( supra) held that:
    

“The ;The record in the magistrates’ court had not been “called for”. It could only have been callr if the Chief Justice had requested it, and he had not: see section 260(2) of the CPA. Nor. Nor had the record “been reported for orders”. That only applies when a magistrate wishes to report something to the High Court under section 261(2) of the CPA. So the only route by which the High Court’s powers under section 262(1) of the CPA could have been invoked in this case was if the record of the proceedings in the magistrates’ court had come to the knowledge of the High Court in some other way. In this case, it had come to the knowledge of the High Court by the transfer of Nadan’s case under section 190;(3) of the CPA CPA to the High Court for sentencing.




So was the High Court’s revisionary power under on 262(1) of the CPA intended to cover cases which had come to the knowledge of the High Cogh Court by that route? I do not think so.”

34. In this case, the Chief Justice had not requested to call the record of the Magistrate’s Court pursuant to Section 260 (2) of the Criminal Procedure Act. Neither the learned Magistrate had reported to the High Court pursuant to Section 261 of the Criminal Procedure Act. The transfer order does not fall within the meaning of “which otherwise come to its knowledge” (vide; Nadan v State). Accordingly, this Court has no jurisdiction to act under Section 262 of the Criminal Procedure Act in this application.
    
35. Furthermore, Section 262 (5) of the Criminal Procedure Act states that an application of revision shall not be entertained if the party could have appealed. In this instance, the Appellants have invoked the Appellate jurisdiction of this Court under Section 246 of the Criminal Procedure Act. Hence, the Appellants are barred from invoking the revisionary jurisdiction. Accordingly, I find the submissions of the learned Counsel for the Appellants that this Court must hear this appeal exercising its supervisory power has no legal basis.
    
36. In conclusion, I make the following order:
1. The Petition of Appeal filed by the five Appellants is dismissed.
   

...........................................................................

Hon. Mr. Justice R.D.R.T. Rajasinghe




At Suva<^th February 2022




Solicitors
Ratumaiyale Esquire for all the Appellants.
Fiji Independent Commission Against Corruption for Respondent.