Re Radomodomo, ex parte Attorney General [1902] FJLawRp 1; [1875-1946] 3 FLR 41 (14 February 1902)

[1875-1946] 3 FLR 41

SUPREME COURT OF FIJI

Civil Jurisdiction

re RATU SAVANACA RADOMODOMO

ex parte THE ATTORNEY-GENERAL

Berkeley, C.J.

February 14, 1902

Writ of habeas corpus - rule absolute issued in first instance - rule absolute discharged on application of Attorney - General and rule to show cause issued instead.

Ratu Savanaca Radomodomo was confined to the island of Na Yau by a confining order issued under the Disaffected Natives Ordinance, 1887.^[1] Application was made for a writ of habeas corpus and a rule absolute was issued in the first instance without hearing counsel for the Crown. The Attorney-General immediately applied for an order to show cause why the rule absolute should not be discharged and a rule nisi issued instead thereof.

HELD –

In the circumstance the proper cause was to discharge the rule absolute and give leave to issue a rule nisi for the writ of habeas corpus.
Cases referred to:-

(1) Ex Parte Mathew Gale the Younger [1845] 14 LJQB 316.

(2) Re Eggington [1853] 2 E and B 717; [1853] EngR 886; 118 ER 936; 23 LJMC 41 ; 41 Dig 89.

(3) Re Geswood [1853] EngR 1018; 2 E and B 952; [1853] EngR 1018; 118 ER 1022; 23 LJMC 35; 16 Dig 269.

(4) Reg. v Gauz [1882] UKLawRpKQB 47; [1882] 9 QBD 93.

APPLICATION by the Attorney-General for an order discharging a writ of habeas corpus issued on a rule absolute in the first instance and for a rule nisi to be issued instead thereof. The facts are fully set out in the statement of reasons issued by the Chief Justice on 18th February, 1902.^[2]

F. O. Edlin for Ratu Savanaca Radomodomo.

BERKELEY, C.J.- On the 3rd February instant I, after hearing Mr. Edlin granted on his application, a rule absolute for a writ of habeas corpus to bring up the body of Ratu Savanaca Radomodomo.

The writ was taken out on the 5th of February. On the 7th an order was, on behalf of the Attorney-General, granted to show cause why this rule absolute should not be discharged and a rule nisi issued instead thereof on the ground, inter alia, that the prisoner was confined under the authority of the Administrator of the Government of the Colony acting in pursuance of powers conferred by Ordinance XX of 1887.^[3] After hearing the Attorney-General it seemed to me that, as the matter is one in which the Administrator of the Government claims to have acted under an Ordinance of the Legislature of the Colony, which it is claimed, confers upon him unusual and peculiar powers with respect to the confinement of persons of the native Fijian race, for political reasons, and in certain circumstances which are said to exist in this case, I ought not to have made the rule absolute without first giving the Attorney-General an opportunity to show cause against it and therefore I have ordered the rule to be discharged, and have given Mr. Edlin leave to issue a rule nisi for a writ of habeas corpus. On that rule being argued the right of the prisoner to be released, or his liability to be detained, can be determined and as I have required the Attorney-General to undertake to accept short notice, which he has done, there need be no delay in determining the rights of the subject in this case. The course which I have taken is similar to that adopted in the case of Mathew Gale the Younger reported in 14 LJQB at page 316. In that case a habeas corpus had been obtained directed to the keeper of the gaol at Durham commanding him to bring up the body of the prisoner who was in his custody by virtue of a warrant of committal under the Mutiny Act for assisting in concealing a deserter. On a subsequent day the prisoner having been brought up Mr. Justice Wightman on the ground that the Crown was interested in the proceedings, ordered notice of the writ to be given to the Secretary of State for War, remanding the prisoner meanwhile; and on a later day, Mr. Bramwell moving on an affidavit that notice had been given inter alia to the Secretary for War, and no cause shown Mr. Justice Wightman, after hearing objection to the commitment, and being of opinion that it could not be supported, ordered that the prisoner be discharged.

The case now before me is affected by circumstances which are novel, and peculiar, and probably unique; rendering this case, so far as I know, without direct precedent. But it seems to me that the case of Mathew Gale the Younger is authority for the course I have adopted.

If when the rule is taken out by Mr. Edlin he asks therein, as he will be entitled to do, that in the event of the rule being made absolute the prisoner should be ordered to be discharged without being brought up before the Court he will obtain for his client every possible advantage which could have accrued to him by the rule being made absolute in the first instance. That was the course taken in Eggington's case 2 Ellis and Blackburn 717, and in Geswood's case 2 Ellis and Blackburn 952. In the former case at page 734 Lord Campbell said "I have repeatedly granted it" (the rule nisi for a writ of habeas corpus) "in this form to avoid the necessity for bringing up the party." It is the practice also in extradition cases to issue a rule nisi calling upon the Home Secretary, the Metropolitan Police Magistrate, and the foreign Government to show cause why the writ should not issue. That course was followed in the Queen v Gauz [1882] UKLawRpKQB 47; 9 QBD 93 in which case, where a rule absolute for a habeas corpus had in the first instance been granted and the writ of habeas corpus had issued, upon the suggestion of the Attorney-General the matter was argued as if the prisoner's counsel was moving for a rule nisi on affidavits, and the Crown showing cause against the rule. It therefore appears that the course I have adopted is the right one.

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^[1] Disaffected Natives Ordinance, Cap. 90.
^[2] Disaffected Natives Ordinance, Cap. 90.
^[3] Disaffected Natives Ordinance, Cap. 90.