Rasova v Fiji Independent Commission Against Corruption [2022] FJHC 61; HACDM002.2022S (22 February 2022)

IN THE HIGH COURT OF FIJI AT SUVA

ANTI CORRUPTION DIVISION

APPELLATE JURISDICTION

APPEAL NO.: HACDM 002/2022S

BETWEEN

SIMIONE ROKOMALO RASOVA

(APPELLANT)

AND

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION

(RESPONDENT)

RULING

(On Appeal Jurisdiction and extension of time)

Introduction

1. The Appellant was initially charged in the Magistrates Court of Suva, with one (01) count of submitting False Information to a Public Servant, contrary to Section 201 (a) of the Crimes Act and one (01) count of Obtaining Financial Advantage, contrary to Section 326 (1) of the Crimes Act. The Appellant had pleaded not guilty to the two counts on the 25^th of January 2021. On the same day prosecution had informed Court of their intention to file an application to transfer this matter together with few similar matters to the High Court of Fiji. Thereafter, on 14^th April 2021, the Prosecution had made the formal application to the Lernard Magistrate to transfer this case together with six (06) other similar matters to the High Court. The learned Magistrate, having heard the submissions made by the parties to the proceedings, had transferred these cases to the High Court on 06^th December 2021 pursuant to Section 188 (2) and Section 191 of the Criminal Procedure Act of 2009. Being aggrieved with the said ruling of the Learned Magistrate, the Appellant has filed an appeal in the High Court on the 5^th of January, which has been refused by the registry on the basis that it was out of time.
2. Being discontented by this administrative decision, the Appellant has filed a Notice of Motion on 20^th January 2022, supported by an affidavit, seeking an extension of time to file the appeal, since the last date of appeal was a public holiday.
3. Being convinced of the reasons provided by the Appellant counsel for the delay, his Lordship the Chief Justice had directed the registry to accept this Petition of Appeal. As a consequence, this Court has accepted this Petition of Appeal and therefore the extension of time intended by the Notice of Motion for filing this Petition has been granted. This Court is in agreement of this decision.
4. Thereafter, on the 24th of January 2022, this Court directed parties connected to this matter and other similar matters contesting the order of the Learned Magistrate to make submissions on the issue of the jurisdiction of the High Court to hear these appeals. Accordingly, the learned counsel for the Appellant and the Respondent have filed their respective written submissions as per the direction. Having considered the respective written submissions of the parties, I now proceed to pronounce the ruling on the issue of jurisdiction.

Submissimissions of the Appellant

The learned counsel for the Appellant submits that the provisionisions stipulated in Sub-Section 246 (7 of the Criminal Proceduocedure Act of 2009 are ambiguous, where for his understanding the following parts of Sub-Section 246 (7) are contradictory to one another. In that, the first part of this Sub- Section reads, “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 the subsequent part of the Sub-Section that reads, “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” is contradictory to the first part.

Counsel for the Appellant submits that since the transfer order made by the Learned Magistrate is an interlocutory order prior to conviction, this order is contemplated by the first part of Sub-Section 246 (7) and provides a right of appeal to the High Court and “In the interest of Justice”, the grievance of the Appellant should be heard or at least the decision in issue should be reviewed by this Court.

The learned Counsel for the Appellant further highlights the jurisdiction of Criminal Courts in Fiji. In this regard, he brings to the attention of Court that under Sub-Section 35 (1) of the Criminal Procedure Act of 2009, only indictable offences are to be dealt with by the High Court. Still further, he states that under Sub-Section 4 (1) (C) of the Criminal Procedure Act of 2009, “any summary offence shall be tried by a Magistrate Court”. In this process, the counsel for the Appellant reminds Court to keep in mind that the Appellant is only charged with summary offences.

In making the above submission about jurisdiction of Criminal Courts in Fiji, the counsel for the Appellant recognizes that in quite a few cases the Court of Appeal of Fiji has held that summary offences can be determined by the High Court pursuant to Section 188 and Section 191 of the Criminal Procedure Act of 2009. However, in highlighting the paramount importance of having the Appellant tried in the Magistrates Court, the counsel for the Appellant relies on a decision of the High Court of Fiji, where a summary matter transferred under Section 191 of the Criminal Procedure Act of 2009 was remitted back to the Magistrate’s Court in view of the provisions in Section 4 of the Criminal Procedure Act of 2009 in relation to hearing of summary matters. In concluding his submission on jurisdiction of Criminal Courts in Fiji, the counsel for the Appellant states, “When will we stop undermining the capabilities of the Magistrate’s Courts in hearing summary charges”?

In addition, the learned counsel for the Appellant invites the Court to hear this appeal under the revisionary power as stipulated under Section 100 (6) of the Constitution.

Moreover, in the alternative, the counsel for the Appellant invites thurt to exercise its inherent jurisdiction to remit this mats matter back to the Magistrate’s Court.

Submissions of the Respondent

11. The Court considered the submissions of the learned Counsel for the Respondent. The learned counsel for the Respondent states that the learned Magistrate had not determined the guilt of the accused person in this matter; thus, the Appellant has no right to appeal to the High Court against the said order of transfer under Section 191 of the Criminal Procedure Act, according to Section 246 (7) of the Criminal Procedure Act.

The Law and Analysis

12. With regard to the first argument raisedhe Apnt’s counsel, where he identifies an ambigumbiguity in the language used by the legislegislature in Sub-Section 246 (7) of the Criminal Procedure Act of 2009, which according to his submissions creates a contradiction necessitating the Court to consider the first part of Sub-Section 246 (7) independently, devoid of the second part, this Court holds as follows:
13. This Court is of the view that the legislature in its wisdom has contemplated and identified a specific juncture in the Magistrate’s Court proceedings where parties could appeal to the High Court, as elaborated and analyzed by this Court in the ruling pronounced by Justice Rajasinghe on the 04^th February 2022 in the case of Ratu Suliano Matanitobua and Others v Fiji Independent Commission against Corruption HACDA 009 of 2021S. I am in agreement with my brother judge’s ruling. In effect, the sharp design of this Section has uncrated Appeals on Interlocutory orders being filed in the High Court by parties that could procrastinate legal proceedings against the pellucid provisions incorporated in Article 14 (2) (g) of the Constitution of Fiji assuring justice without undue delay to all persons charged in Court.
14. This Court contends that the Appellant’s counsel has seen a contradiction in Sub-Section 246 (7) of the Criminal Procedure Act of 2009, since he failed to follow a fundamental principle in law, i.e. reading the relevant section of the statute in its entirety. This is the felony in interpreting statutes that many new entrants to the legal profession could commit by reading one part of a section in a statute in isolation without comprehending its interaction with the rest of the section and thus the final product intended by the legislation. As a consequence, while not recognizing any contradiction in Sub-Section 246 (7) of the Criminal Procedure Act of 2009, the Court is of the view that this argument fails in ipso initio.
15. In considering the submission of the Appellant’s counsel regarding the jurisdiction of Criminal Courts in Fiji and in discovering several decisions pronounced by the Court of Appeal of Fiji in acknowledging the authority given to the Magistrate to transfer maters to the High Court under Sections 188 and 191 of the Criminal Procedure Act of 2009, I wish to reiterate the decision of Justice Calanchini in Roligalevu v State [2016] FJCA 165; AAU 50.2012 (2 December 2016), where he states;

“Under section 4(1) (b) of the Criminal Procedures Decree the right of the accused to elect is given only in relation to offences that are indictable but triable summarily. The power given to a magistrate to transfer a summary offence to the High Court is set out in section 188 and 191 of the Procedure Decree.”

16. However, regardless of clear recognition by the Superior Courts of the country of the authority of the Magistrate to transfer summary matters to the High Court under Sections 188 and 191 of the Criminal Procedure Act of 2009, the counsel for the Appellant insists on the decision in State v Ravuwai [2014] FJHC 165 of the High Court, where he claims that the matter was remitted back to the Magistrate’s Court in recognition of its authority.
17. While agreeing with the final decision of the High Court in the above decision, this Court needs to emphasize that the matter had been transferred to the Magistrate’s Court by the High Court, since the Magistrate failed to comply with statutory provisions under Criminal Procedure Act of 2009, as required. In this regard, Justice Temo states;

“The election for a Magistrate Court or High Court trial was not put to the accused during the 11 months the case was in the Magistrate Court. Some of the charges were "Forgery" ones, and therefore indictable offences which were triable summarily. Because of the above oversight, the whole proceeding in the Magistrate Court was a nullity: see Aca Koroi0;The State, HAM 186 of 2012S, High Court, Suva, paragraph 7; Fabiano Misaele Vanuu v The State HAA 031 of 201f 2013S, High Court, Suva.

I therefore remit this case t Magie Court for the ethe election to be put to the accused in conformity with section 4 (1 ) (b ) (b) of the Criminal Procedure Decree 2009. I order so accordingly.”

18. In view of the above, this Court is of the view, while failing to understand the reason to transfer the matter to the Magistrate’s Court in the case of State v Ravuwai [2014] FJHC 165, the Appellant’s counsel has not submitted any plausible arguments to this Court to dispute the authority given to the Magistrate Court by the statute under Section 188 and 191 to transfer matters to High Courts.
    
19. In commenting on the claim of Appellant’s counsel, “When will we stop undermining the capabilities of the Magistrate’s Courts in hearing summary charges”?, this Court is of the view that this claim has been made in the wrong forum, since Courts of Law are only involved in the adjudication of justice and nothing more.
20. I now intend to consider the contention of the Appellant’s counsel in relation to the inherent jurisdiction of this Court and the possibility of remitting this matter back to the Magistrate’s Court.
21. In this regard, while recognizing and appreciating the pronouncement of justice Gounder in Balaggan v State [2012] FJHC 923 in relation to the inherent jurisdiction of the High Court of Fiji, this Court is of the view that the High Court of Fiji should utilize the inherent jurisdiction to provide fairness and justice to its citizenry and community, as required, in situations and circumstances well identified and documented for the use of inherent jurisdictions in common law jurisdictions.
22. In this light, I would like to bring to this discussion one of the initial cases that identified the use of inherent jurisdiction in the United Kingdom, in the interest of justice, where the ruling was made by Lord Denning for the Court of Appeal of England and Wales.
23. In the case of Anton Piller KG v Manufacturing Processes Ltd and others [1976] 1 All ER 77, which gich gave rise to the Anton Piller Orders now in existence, the Applicants sought an ex-parte order for inspection of defendant’s premises in a case of Intellectual Property viol, which had not been accommccommodated by legislation or case law before. In pronouncing the decision of the Court of Appeal, Lord Denning stated as follows:

“This is not covered by the rules of court and musbased on the in60;inherent jurisdicti60;#160;of the court. ...............................So it falls to us to consideon prle. It seems to me that such an order can be made by a judge ex parte, but it shot should ould only be made where it is essential that thentiff should have inspectioection so that justice can be done between the parties; and when, if the defendant were forewarned, there is a grave danger that vital evidence will be destroyed, that papers will be burnt or lost or hidden, or taken beyond the jiction, and so the ends ofds of justice be defeated; and when the inspection would do no real harm to the defendant or his case.”

24. In this regard, Common Law Courts have utilized inherent jurisdiction to make orders or interfere with orders of lower courts, where they have foreseen that in the interest of justice their involvement was necessary in extreme situations. In the current matter, the Appellant’s counsel invites this Court to intervene by utilizing its inherent jurisdiction to remit this matter back to the Magistrate’s Court and thereby nullify an order made by the Learned Magistrate under clear provisions of the Criminal Procedure Act of 2009.
25. On the issue of using the inherent jurisdiction of this Court against an order made in accordance with statutory provisions by the Learned Magistrate, I would like to highlight a decision of the Supreme Court of Canada on the very issue. In the case of Baxter Student Housing Ltd. Et al v College Housing Co-operative Ltd. Et al 1975 CanLII 164 (SCC); [1976] 2 SCR 475, Dikson J stated as follows:

“In my opinion the inherent jurisdiction of the Court of Queen’s Bench is not such as to empower a judge of that Court to make an order negating the unambiguous expression of the legislative will. The effect of the order made in this case was to alter the statutory priorities which a court simply cannot do.”

26. Further, in the case of Montreal Trust Company et al. v. Churchill Forest Iries (Man (Manitoba) Limited, 1971 CanLII 960, which is cited as the paradigm of the exercise of judicial discretion in Canade then chief justice of Canf Canada, Justice Freedman has stated, as follows:

“Inherent jurisdiction cannot, of course, be exercised so as to conflict with a statute or Rule. Moreover, because it is a special and extraordinary power, it should be exercised only sparingly and in a clear case.”

27. Therefore, in taking guidance from these decisions in other common law jurisdictions, I hold that this argument of Appellant’s counsel does not stand ground under the circumstances of the current case and can be disregarded.
28. I now draw my attention to the issue of supervisory power of the High Court. The learned Counsel for the Appellants submitted that pursuant to Section 100 (6) of the Constitution, the High Court has the supervisory jurisdiction to hear this appeal and grant an order staying the proceedings of the substantive matter.
29. Upon comprehensive analysis of this issue, this Court has pronounce its decision on this matter in the case of Ratu Suliano Matanitobua and Others v Fiji Independent Commission against Corruption HACDA 009 of 2021S (Supra). I am in agreement with the decision of my brother judge Justice Rajasinghe, where his Lordship held that this argument has no legal basis.
30. In conclusion, I make the following order:
31. The petition of appeal filed by the Appellant is dismissed due to want of jurisdiction to appeal to the High Court in this matter.
    

................................................
Hon. Justice Dr. Thushara Kumarage

At Suva

22 February 2022