Justice William Marshall:
The strange facts relating to Justice Sosefo Inoke and his tenure as a High Court Judge
Justice Sosefo Inoke who comes from Rotuma was appointed in early 2009. He was an obscure personal injuries practitioner in the West. If in any other areas of the law he ran the kind of argument that he would become well-known for in his judgments, there is every reason to understand why he remained obscure.
What was said about his appointment by the Attorney General and Chief Justice was that it was politic to have another “i-taukei” judge in addition to Justice Temo. The real reason for his appointment was that the Attorney General wished to have someone committed to turning out judgments in favour of the Executive. It was arranged that the Attorney General would be able to “forum shop” and send to Justice Inoke particular files in which he wanted a favourable result for the Executive without regard to the merits of the Executive’s case.
Almost the first civil ruling I delivered in Fiji was in the case of South Sea Cruises Limited v Samsul Mody. It was an admiralty limitation of liability case. Apassenger on a cruise had drunk from a bottle containing corrosive cleaning fluid thinking it was water. He was seriously injured. An International Convention applies and, through a complicated but upwards adjusting formula, limits damages to a reasonable level. South Seas had already paid out beyond this limit in paying Mr Mody AU$135,000. South Seas had an unanswerable case in Fiji for invoking and succeeding under the International Convention (and Justice Inoke dismissed South Sea Cruises ‘ application with the following words:- “ Mody’s personal injuries were not as a result of a collision between the Seaspray and another vessel. Clearly, the Act and the Conventions have no application to this case. I must say that I had to check myself to make sure that I was right. Such a slip by any counsel, let alone by both counsel from either side must be very rare.  The application must be dismissed.”
Justice Inoke then ordered “indemnity costs of $10,000” in favour of Mr Mody. Finally in order to prevent an appeal, Justice Inoke made his judgment an interlocutory one. Since Justice Inoke knew that this was a final order under the application, this was a dishonest act to ensure that South Seas must lose the litigation. The authorities are strongly against leave to appeal being granted if the order is interlocutory. Justice Inoke had ruled that South Seas’ claim was an abuse of process.
Since this was the most dishonest and manifestly wrong judgment I had ever seen in 41 years as Counsel or on the Bench, I brought it to the attention of the Chief Justice. Apart from thanking me for doing so, Anthony Gates C J made no comment on my statements objecting to this judge continuing on the Bench. I then sought an interview with Christopher Pryde the Solicitor-General. I told him about South Seas and many other cases decided by Justice Inoke noton the applicable facts and the law of Fiji, but on his subjective exercise of personal power being anything other than the law of Fiji. Like Anthony Gates CJ, Christopher Pryde S G politely heard me out but said nothing.
Some time later when the substantive appeal was heard on 7th March 2011, Mr M Thompson S C from Australia for Mr Samsul Mody, immediately disowned reliance on everything said and done by Justice Inoke in the Court below. I found that Justice Inoke had been seemingly always invited in one or two cases per session of both the Appeal Court and the Supreme Court. I was expected to continue this practice when I took over running the Court of Appeal, and I reluctantly did so. I neutralized this to some extent by choosing cases on personal injuries, where if the original Plaintiff had the merits, the facts and the law on his side, Justice Inoke could and would write a judgment that was honest and legally correct.
At a later time (in early 2011, I think) Anthony Gates C J said to me that the Attorney General used his power to allocate a series of land cases where the Government had an interest in succeeding. Justice Inoke had quickly found in favour of the Executive. In this discussion, Anthony Gates C J implied that the reasoning on these pro Executive decisions was completely unsatisfactory. He was obviously unhappy but did not have the power to stop this process. To do so would have meant crossing the Attorney General and this he was not prepared to do.
As I have said above, the judiciary was corrupted by the Executive putting the individual judges in fear. In the case of Justice Inoke, he had willingly agreed with the Attorney General to write judgments corrupt in the sense that he would always deliver the decisions the Executive and the Attorney General wanted quite regardless of the merits of the facts and the law. From his comments and speeches at judicial gatherings, it is clear that he expected his reward would be elevation to being President of the Court of Appeal or Chief Justice. Although there is always an argument for localization of the top offices in a post-colonial situation, the other local justices were afraid that this might happen. Should your Government be replaced by the SDA headed by Qarase or another, they will care even less for the rule of law and the independence of the judiciary than the Attorney General. They will welcome Justice Inoke to the top job and he will ensure for them a corrupt judiciary that will always and indiscriminately do the Executive’s bidding. This will be the nemesis of the rule of law in Fiji.
Another aspect of Justice Inoke’s conduct concerns the rule of law. In 2009 when appointed, he had a partner of 8 years, an Australian national by the name of Ms S. S. They had a 4 year old daughter born in Fiji. Justice Inoke on appointment as a Justice asked the Judicial Department to regularize her stay in Fiji with the Director of Immigration. Ms S. S. and Justice Inoke both had an older child (or children) by earlier partners. For reasons unknown Ms S. S.’s stay was not quickly regularized by the judicial department.
Following an incident involving “children of the family” Justice Inoke and Ms S. S. separated amidst great acrimony. Justice Inoke wished to have Ms S. S. deported from Fiji to Australia. Justice Inoke then wrote a letter on judiciary notepaper to the police at Nadi requesting or requiring that Ms S. S. Be deported to Australia. That was sent to the Director of Immigration for action. The police and immigration authorities put Ms S. S. in fear and she escaped to Suva. Armed with a copy of Justice Inoke’s letter, Ms S. S. complained to Anthony Gates C J that Justice Inoke had committed the criminal offence of “abuse of office”.
You will recollect that some time ago Beniamino Naiveli, an Assistant Commissioner of Police ordered his police to obtain an eviction order in respect of a lady who was in lawful possession of a house to which Beniamino Naiveli thought he had a civil claim. Naiveli was convicted and sentenced to 9 months imprisonment. Naiveli was fortunate to have the sentence suspended. This clear abuse of power was intended to be effective by Justice Inoke.
If Ms S. S. had not gone to the Chief Justice, the request or requirement would have been effective. It is a worse case of abuse of office than that of Naiveli. If the rule of law applied Justice Inoke would have been prosecuted for a serious offence of abuse of office. But the Chief Justice, instead of sending the file to the Attorney General for prosecution, covered up the case. He said that it was confidential and must not be made public. Once there is a case for prosecution there is a public interest in public prosecution. In light of that the Chief Justice should not have stifled public knowledge of the case on the spurious ground of confidentiality.
There is no way the Attorney General would have prosecuted Justice Inoke who was corruptly doing what the Attorney General wanted in the High Court. No doubt also the Attorney General required Anthony Gates C J to suppress the matter. Apparently Justice Inoke was also made the recipient of a non-molestation injunction. This fact was never made public. Abuse of office by Justice Inoke was covered up by act that warranted an investigation into whether the Attorney General or Chief Justice should be prosecuted for abuse of office
At the end of his Court of Appeal judgment in Beniamino Naiveli of 12th August 1994, the late Sir Moti Tikaram, who presided, said: “We wish to make it clear however that people in high office who abuse their power may well in the future be required to serve an immediate prison sentence. This comment should serve as notice to any such people that the courts are not prepared to regard such offence lightly and that they will not suspend sentences just because the consequences for such a person are severe.”
Mr Mahendra Motibhai Patel recently received 12 months immediate imprisonment for abuse of office in ordering a Post Office clock without following the appropriate tender procedures. The case against Justice Inoke was arguably more serious than either that against Mahendra Patel or Beniamino Naiveli.
Not only was Justice Inoke not prosecuted, he was not even dismissed from the judiciary for serious misconduct. On one Court of Appeal session that I organized in 2011 there were about seven out of about nine civil appeals against judgments of Justice Inoke. His appointment and his conduct in office were an affront to the rule of law and the independence of the judiciary. It is debatable whether the judgments that were based on personal whim rather than on fact and law were worse than those intentionally and corruptly favouring the Executive.
We may recall that Justice Inoke claimed that he was fired for “writing anti-government” judgments.