Attorney General v Teraoi [2013] KICA 4; Civil Appeal 04.2013 (23 August 2013)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Civil Appeal No. 4 of 2013

BETWEEN

ATTORNEY-GENERAL
APPELLANT

AND

MIKAERE TERAOI
RESPONDENT

Before: Paterson JA
Blanchard JA Handley JA
Counsel: Bitarana Yeeting for appellant Arian Arintetaake for respondent
Date of Hearing: 21 August 2013
Date of Judgment: 23 August 2013

JUDGMENT OF THE COURT

1. The Attorney-General has appealed from the decision of Commissioner Semilota on 19 February 2013 who refused to dismiss an action for constitutional redress under article 17 brought by the respondent based on his imprisonment following convictions for two criminal offences.
   
2. In November 2009 the respondent was convicted in his absence and sentenced to a term of imprisonment which he commenced to serve. He appealed to the High Court and in June 2010 he was released on bail pending the determination of his appeal. On 26 July 2010 his appeal was allowed and his convictions were quashed.
   
3. On 1 June 2011 the respondent brought an action in the High Court under article 17 joining the Attorney-General as representing the State. The proceedings were commenced by writ and statement of claim and the respondent sought damages for contraventions of his constitutional right to a fair hearing of the charges guaranteed by article 10.
   
4. The defendant filed a statement of defence on 12 September 2011, which was amended on 14 November 2011 and 21 March 2012.
   
5. On 13 September 2012 the defendant filed a motion for summary dismissal of the action on the grounds that it was barred by s.4(5) of the Proceedings by and Against the Republic Act (the Act), and was brought by writ of summons contrary to O58 rr 1 and 2 of the High Court (Civil Procedure) Rules.
   
6. On 19 February 2013 the Commissioner dismissed the motion holding that the proceedings were authorised by article 17(1) which must prevail over s.4(5) of the Act, and that proceedings by writ of summons were competent.
   
7. On 28 March 2013 the defendant appealed to this Court, maintaining both grounds for dismissal of the proceedings.
   
8. Article 17(1) relevantly provides:
   

".... if any person alleges that any of the provisions of sections 3 to 16 (inclusive) of this Constitution has been .... contravened in relation to him .... then, without prejudice to any other action with respect to the same matter which is lawfully available, that person .... may apply to the High Court for redress".

9. Article 10 relevantly provides:
   

"(1) If any person is charged with a criminal offence, ... the case shall be afforded a fair hearing within a reasonable time ....

(2) Every person who is charged with a criminal offence –

(a) shall be presumed to be innocent until he is proved or has pleaded guilty;

(b) .....

(c) shall be given adequate time and facilities for the preparation of his defence;

(d) shall be permitted to defend himself ...

(e) shall be afforded facilities to examine ... the witnesses called by the prosecution ...

(f) ...

And, except with his own consent, the trial shall not take place in his absence ..."

10. Article 10 can only be contravened by the prosecuting authorities or the judicial arm of Government, and it is clear from Attorney-General v Mbwe [2006] KICA 3 and Maharaj v Attorney-General of Trinidad and Tobago (No. 2) [1978] UKPC 3; [1979] AC 385 that the Government can be liable for such contraventions.
    
11. Section 13 of the Act provides:
    

"Except where otherwise expressly provided by some other written law, civil proceedings by and against the Republic instituted under the provisions of this Ordinance shall be instituted by or against the Attorney-General".

12. We have not been referred to any other relevant law, and conclude that the proceedings were properly commenced against the
    Attorney-General as defendant.
    
13. The appellant relies on s.4(5) which provides:
    

"No proceedings shall lie against the Republic by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process".

14. If s.4(5) on its true construction would apply in this case to bar the respondent's action for constitutional redress, it must give way to article 10 because article 2 provides:
    

"This Constitution is the supreme law of Kiribati and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void".

15. Before concluding that s.4(5) is actually inconsistent with the Constitution, a court should consider whether a construction of the provision is fairly open which would avoid that inconsistency.
    
16. Section 4(1) provides that "... the Republic shall be subject to all those liabilities in tort ...". Further references to "liabilities in tort" occur in subsections (2), (3) and (4). In this context subsection (5) can and should be read as referring to liabilities of the Republic in tort.
    
17. This construction is confirmed by the text of subsection (5) which provides "No proceedings shall lie against the Republic by virtue of this section ...". Proceedings under article 17 are not brought "by virtue of this section". Moreover, as the Privy Council held in Maharaj v Attorney-General for Trinidad and Tobago (No. 2) [1975] AC 385 at 395, 399 a claim for an award of compensation for contravention of a constitutional right is not a claim in tort. At page 400 Lord Diplock said of such a claim: "It is a claim in public law for compensation for deprivation of liberty alone".
    
18. Thus s.4(5), on its true construction, does not apply to the plaintiff's claim for compensation under article 17.
    
19. The other ground of appeal challenged the plaintiff's proceedings on procedural grounds, asserting that they should be struck out because they were commenced by writ and statement of claim, and not by an originating summons under O.58 of the High Court Rules. That order, as its terms indicate, refers to proceedings for the determination of questions of construction. The plaintiff's statement of claim raises questions of fact, and seeks an award of compensation or damages.
    
20. Even if there was an irregularity, order 69 r.1 provides that the proceedings are not void, and r.2 allows an objection to be waived. The defendant filed a defence to the statement of claim, amended it twice, and did not take the point until nearly a year after the writ and statement of claim were filed.
    
21. If the plaintiff had commenced these proceedings by originating summons, we would have taken the earliest opportunity to direct that the case proceed on pleadings because of the complexity of the factual issues and the claims for damages and compensation. The second ground of appeal should be rejected.
    
22. The following orders are made:
    
    1. Appeal dismissed;
    2. Appellant to pay the respondent's costs and disbursements.
       

Paterson JA

Blanchard JA

Handley JA