Ralumu v Commander, Republic of Fiji Military Forces - Oral Decision [2004] FJSC 12; CBV0008.2003S (10 September 2004)

IN THE SUPREME COURT OF FIJI ISLANDS
AT SUVA

CIVIL APPEAL NO. CBV0008 of 2003S
(Fiji Court of Appeal No. ABU0043 of 2003S)

BETWEEN:

METUISELA RALUMU AND OTHERS
Petitioners

AND:

THE COMMANDER REPUBLIC OF FIJI
MILITARY FORCES
First Respondent

THE MINISTER OF HOME AFFAIRS
Second Respondent

THE ATTORNEY GENERAL OF FIJI
Third Respondent

Coram: The Hon Chief Justice Daniel Fatiaki, President of Supreme Court
The Hon Justice Robert French, Judge of Supreme Court
The Hon Justice Sir Kenneth Keith, Judge of Supreme Court

Hearing: Friday, 10th September 2004, Suva

Counsel: Mr S. R. Valenitabua for the Petitioners
Mr Tuinaisara for the First Respondent
Mr K.V. Keteca for the Second ad Third Respondents
Mr B. Solanki as Amicus Curiea

Date of Decision: Friday, 10th September 2004, Suva

ORAL DECISION AS ANNOUNCED IN COURT ON 10TH SEPTEMBER 2004

The Court is of the opinion that in this case special leave to appeal against the decision of the Court of Appeal should be granted and the appeal allowed. The Court will publish full reasons later. The essential reasons for our decision are as follows:

1. The decision appealed against was a decision refusing an extension of time to appeal to the Court of Appeal from a judgment of the High Court refusing Habeas Corpus in respect of the Petitioners’ detention on charges of murder.
   
2. An extension of time was refused on the basis that an appeal would be futile because the petitioners were lawfully in detention on other grounds and because it was open to them to challenge the jurisdiction of any Court Martial convened to hear the murder charges at the time of such Court Martial.
   
3. The judgment refusing leave to extend time was a final judgment of the Court of Appeal as conceded by counsel for the 1^st respondent. The Supreme Court therefore has power to entertain an application for special leave to appeal against that judgment.
   
4. In our opinion the judgment raises two questions which are of substantial general interest in the administration of civil and criminal justice. They are:-
   
   • (a) Whether Habeas Corpus may issue in respect of a detention based on one ground when the applicant would remain in lawful detention anyway based on another ground?
     
   • (b) Whether the availability of a right to challenge the jurisdiction of a Court Martial convened to hear murder charges is a proper basis for refusing Habeas Corpus in respect of detention based on those charges?
     
5. The criteria for special leave have been satisfied and special leave should be granted.
   
6. The appeal should be allowed on the basis that the remedy sought by the Petitioners may be available despite the fact that they would remain in lawful detention.
   
7. The orders of the Court are:-
   
   • (1) Special leave is granted.
     
   • (2) The appeal is allowed.
     
   • (3) The decision of the Court of Appeal refusing an extension of time within which to appeal is set aside.
     
   • (4) The time limited to file a notice of appeal against the decision of Jitoko J. is extended to 24 September 2004.
     
   • (5) There will be no order as to costs on the petition.
     
8. It is desirable that the hearing of the appeal by the Court of Appeal be expedited. That however is a matter for the President of the Court of Appeal to determine.
   

We also consider that the availability of a challenge to the jurisdiction of any murder Court Martial should not prevent the Petitioners from testing the legality of their arrest and detention on those charges in the Civilian Courts particularly having regard to the extra ordinary delays that have attended the laying of charges and the convening of a Court Martial for murder.

Chief Justice, Daniel Fatiaki
President of Supreme Court

Justice Robert French
Judge of Supreme Court

Justice Sir Kenneth Keith
Judge of Supreme Court

Solicitors:

Valenitabua Esq., Suva for the Petitioner
Legal Officer, Army Legal Services, Suva for the First Respondent
Office of the Attorney General, Suva for the Second and Third Respondents
Office of the Director of Public Prosecutions, Suva as Amicus Curiea