Weaver v Fiji Broadcasting Commission [1977] FJSC 163; Action 56 of 1977 (1 March 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA

Civil Jurisdiction
Action No. 56 of 1977

BETWEEN

COLIN STANLEY WEAVER
(Plaintiff)

AND:

FIJI BROADCASTING COMMISSION
(Defendant)

Mr. G.P Shankar for the Plaintiff
Mr. B.M. Sweetman for the Defendant

JUDGMENT

Mr. Colin Stanley Weaver seeks an injunction (a) restraining the Fiji Broadcasting Commission from committing any breach of Article 15 of the Fiji Constitution, in that the defendant be restrained from committing an act of discrimination by not allowing plaintiff to broadcast his election message through Radio Fiji and (b) requiring the defendant to allow and permit the plaintiff to broadcast his election message through Radio Fiji to the people of Fiji.

The plaintiff is an independent candidate in the Fiji General Election standing for election as a general candidate for the Lautoka-Singatoka constituency. He says in his affidavit in support that on 10th March 1977 he sought permission of the defendant to allow him three minutes time on Radio Fiji to broadcast a message. He offered to pay the defendant the appropriate fees but the defendant refused him permission. He says that that defendant has allowed candidates sponsored by two political parties to broadcast and that some of such candidates have appealed to electors not to vote for independent candidates, the defendant's actions amount to discrimination contrary to the provisions of Article 15 of the Constitution of Fiji.

The Fiji Broadcasting Commission the defendant is a Statutory body established under The Broadcasting Commission Act Cap. 87 and its duties are set out in section 9 of the Act.

"9. It shall be the duty of the Commission to maintain a broadcasting service as a means of information, education and entertainment and to develop the service to the best advantage and interest of Fiji."

Then section 10 gives the Commission power to do all things necessary and convenient for the carrying out of its duties. By section 12 the Minister may require the Commission to broadcast such items of general interest as he may determine, and by section 13 he may also prohibit the broadcasting of matter which he may specify. Except as above mentioned there is nothing to limit or restrict the Commission in the matter which it may broadcast. It is common ground that the Minister has not prohibited the broadcasting of the matter which the plaintiff desires to broadcast.

Although it would appear that the Commission (for so I will refer to the defendant throughout this judgment) is not restricted in any way as to what it will broadcast or refuse to broadcast plaintiff says that it must not infringe the Fiji Constitution by restricting his right of expression or by discriminating against him by affording; him different treatment by reason of his political opinions. He seeks to substantiate to this point by saying that he is an independent candidate. But surely to say he is an independent candidate is not to say that he has different political opinions from those of the parties to whom the Commission has afforded time, nor is it, as it seems to me, to say that he is discriminated against by reason of his political opinions. He is being discriminated against because he is not a member of a recognised political party. The plaintiff indeed has not told the Court what his political opinions are, and I think that I must assume that he did not tell the Commission. Hence it seems known that defendant was refusing to go on with the sale transaction, the plaintiffs solicitor let him go to Suva to try to get the Native Land Trust Board to issue him with an approval for a lease in the Plaintiff’s name. He was unsuccessful.

The critical matter here is, of course, the notice of rescission, and the burden of proving this lies upon the defendant. The plaintiff did not impress me as a witness. I have no doubt that he knew that defendant was not going on with the sale transaction, although he swears that he did not. In the first place his solicitor would or should have told him, and the fact that in 1974 he went to Suva to get an approval in his own name, on the basis of his sale and purchase agreement when he knew very well that the Native Land Trust Board wanted a transfer is indicative of the fact. It is true that he swears that he did not receive the notice. On the other hand, the defendant had already evinced an intention to resile from the transaction, and there is no doubt that Mr. R.D. Mishra wrote the letter of rescission of 27th November 1972. I find it almost inconceivable that defendant took it from Mr. Mishra but did not deliver it to the plaintiff. Equally I am quite prepared to believe that the plaintiff might have refused to take it or taken it and handed it back. On the balance of probabilities I accept the defendant's story and I hold the rescission notice to have been served upon the plaintiff. That in effect concludes the matter in the defendant's favour.

Mr. Surendra Prasad, for the defendant also urges that in any event the transaction is null and void because the plaintiff had entered into possession before the consent of the Native Land Trust Board was obtained, and he cites Jaikissun v. Sumintra Civil Appeal No. 18 of 1970. Mr. Anand suggests that case is not relevant because the plaintiff and defendant were co-owners. But in Jaikissun v. Sumintra the parties were co-owners and the transaction was nevertheless held void. I do not think, however, that I need go into this matter any further in view of the fact that I have held the rescission to be good. The action will therefore be dismissed and the plaintiff will pay costs - to be taxed in default of agreement.

(K A STUART)
JUDGE

LAUTOKA,
1st March, 1977.