Prasad v Registrar of Titles 1 [2005] FJSC 3; CBV0010.2003S (8 April 2005)

IN THE SUPREME COURT OF FIJI ISLANDS
AT SUVA

CIVIL APPEAL NO. CBV0010 of 2003S
(Fiji Court of Appeal No. ABU0031 & ABU0041 of 2001S)

BETWEEN:

SHARDA PRASAD
Petitioner

AND:

REGISTRAR OF TITLES
Respondent

Coram: The Hon Justice Keith Mason, Judge of Supreme Court
The Hon Justice Mark Weinberg, Judge of Supreme Court
The Hon Justice Kenneth Handley, Judge of Supreme Court

Hearing: Wednesday, 6 April 2005, Suva

Counsel: Mr A.K. Singh for the Petitioner
Mr J.J. Udit and Ms M.R. Vuniwaqa for the Respondent

Date of Judgment: Friday 8 April 2005, Suva

JUDGMENT OF THE COURT

[1] The Court as presently constituted considered and rejected an application by the petitioner that the President not sit to hear the petition or the summons filed by the petitioner that sought to vacate the hearing date and other orders. The recusal application had been made to the Court constituted by the three of us, together with the President, all four Justices having been assigned to hear the proceedings. We reconstituted to consider so much of the application as was based on common law principles, as distinct from s129 of the Constitution.

[2] There was no suggestion of actual bias. Rather, the submission was that a member of the public might entertain a reasonable apprehension that the President might not bring an impartial and unprejudiced mind to the resolution of the questions involved.

[3] The background is set out in the main reasons of the Court.

[4] Two matters were relied upon. The first was that the President, sitting as a Judge of the High Court, had on 25 November 2002 granted ex parte relief in the nature of Mareva orders protective of the respondent’s rights to restitution under the orders of the Court of Appeal. At that stage, indeed to this day, the Court of Appeal’s orders stood as final orders that were not controvertible before a single judge of the High Court. No process had even been lodged in the Supreme Court. Application was subsequently filed in the High Court to set aside or vary these interlocutory orders. The critical point is that they are not under challenge in the current proceedings, which relate solely to the orders of the Court of Appeal. No member of the public could conceivably think that the President might be deflected from his duty to decide the issues in the Supreme Court by reference to his passing involvement in the issuance of the Mareva orders.

[5] The second matter relates to the fact that the President gave procedural directions on 10 February and 16 March this year designed to bring the long delayed petition on for hearing at the April sittings. The petitioner was unhappy with these directions and included a challenge to the President’s direction of 16 March, for the filing of submissions within 14 days, in his Summons returnable on the hearing of the petition. Any disinterested person would understand the appropriateness of the President’s conduct. His right to give interlocutory procedural directions and to sit on the final hearing, even if a party wishes to challenge those directions before the Full Court, is recognised in ss 8 and 11(b) of the Supreme Court Act 1998.

[6] For these reasons we rejected the petitioners’ application that the President was disqualified from sitting to hear the summons and petition.

Justice Keith Mason
Judge of Supreme Court

Justice Mark Weinberg
Judge of Supreme Court

Justice Kenneth Handley
Judge of Supreme Court

Solicitors:

A.K. Singh Law, Nausori for the Appellant
Office of the Attorney General Chambers, Suva for the Respondent