NO SHOW ON EMOLUMENTS COMMITTEE: If the Baimaan Party was serious, it should have nominated one of its MPs to the Parliamentary Emoluments Committee, and later that NFP MP could have refused to sign off the Final Report
"The Speaker is the head of the legislative branch of the government. The role is important and the salary (from $150,000 to $220,000) should reflect the gravitas of the post.'
The Parliamentary Emoluments Committee Report, April 2024.
The Committee also recommended for OFFICIAL RESIDENCE for the Speaker of Parliament.
*Disgustingly, while the FATHER-SON (Health Minister) will feed on massive pay rises, perks and privileges, and may also get official residence, Tui Cakau's subjects are allegedly living in POVERTY
SAVED BY RABUKA's GONG. 'RATU 652 Votes': PAP loser and SODELPA defector Ratu Naiqama Lalabalavu was nominated by PAP-NFP-SODELPA to be the new SPEAKER, the man who wanted GEORGE SPEIGHT and other 2000 coupists freed from NABORO PRISON.
*Labasa Magistrate Sunil Kumar, while jailing Ratu Naiqama Lalabalavu and three other chiefs, said he did not consider a suspended sentence for the four as they had pleaded NOT guilty to the charges against them.
*Mr Kumar said he took into consideration that the four were chiefs in their own right and could have stopped the illegal activities of the rebel soldiers.
*He blamed the takeover of the Labasa police station, the beating up of police officers and loyal soldiers on the four chiefs who, he said, played a leading role in influencing the rebel soldiers to act criminally.
*Fiji's lands minister and Vanua Levu high chief, Ratu Naiqama Lalabalavu, has been jailed for eight months for coup related offences.
* Radio Legend reports that also jailed for eight months are government senator Ratu Josefa Dimuri, and two other Vanua Levu chiefs - one of whom is on the Great Council of Chiefs. Ratu Naiqama is the parliamentary leader of the junior partner in the coalition government, the Conservative Alliance Matanitu Vanua, while Ratu Josefa is its general secretary.
* All four were charged with illegal assembly at the Sukanaivalu Barracks in Labasa during an army mutiny at the height of the 2000 coup.
* Magistrate Sunil Kumar is quoted as saying he did not consider a suspended sentence for the four as they had pleaded NOT guilty to the charges against them.
* Mr Kumar said he took into consideration that the four were chiefs in their own right and could have stopped the illegal activities of the rebel soldiers.
* He blamed the takeover of the Labasa police station, the beating up of police officers and loyal soldiers on the four chiefs who, he said, played a leading role in influencing the rebel soldiers to act criminally.
* The magistrate said illegal assembly is a serious offence which led to instability and security problems at a time when the nation was looking to its leaders to calm the situation. * The four have been taken to Labasa prison where they will serve their term.
*Fiji's jailed former minister for lands, Ratu Naiqama Lalabalavu, and government senator, Ratu Josefa Dimuri, have been released from Labasa Prison to serve their sentences extramurally. Their release today came just 11 days after they were jailed for eight months on Monday of last week on coup related offences.
*Radio Legend reports that family members have confirmed the release of the two chiefs who left for Suva immediately afterwards. The commissioner of prisons, Aisea Taoka, has referred all queries to the supervisor of Labasa Prison who was away in Taveuni and could not be reached.
* The radio report says prison regulations allow a prison supervisor to release any person jailed for less than 12 months to serve the sentence extramurally by doing public work outside.
* Their release mean that Ratu Naiqama and Senator Dimuri will be able to attend meetings of the House of Representatives and the Upper House respectively and will be in no danger of losing their seats.
* Ratu Naiqama resigned his portfolio immediately after his jailing last week and was succeeded by another member of his pro-coup Conservative Alliance Matanitu Vanua and George Speight's brother, Samisoni Tikonisau.
 |  |
19 May 2000. Coincidentally, on the day George Speight and his hooligans seized the Chaudhry government, Ratu Naiqama Lalabalavu had lost his defamation claim against the Fiji Times, and the NLTB. The paper and the Board, represented by lawyer Graham Leung,
claimed Lalabalavu's claim was an abuse of the court process because it disclosed no reasonable cause of action, was misconceived and had no basis in law.
*A reasonable, ordinary and intelligent reader would have read the article to mean no more than that as part of the restructuring of the first defendant (NLTB), a number of employees, including the first plaintiff (Lalabalavu) lost their jobs.
(2) The article's suggestion that the second plaintiff (Fiji Times) had misread the letter was evidence of the second plaintiff's (PENAIA DRIU SAMUSAMUVODRE, Lalabalavu's lawyer) unreasonable sensitivity, not that he had a low mental capacity, and the second defendant's claim of such an implication is an imagined grievance where none existed.
 |  |  |
Lalabalavu v Native Land Trust Board [2000] FijiLawRp 35; [2000] 1 FLR 92 (19 May 2000)[2000] 1 FLR 92
IN THE HIGH COURT OF FIJI
RATU NAIQAMA TAWAKE LALABALAVU
& PENAIA DRIU SAMUSAMUVODRE
v
NATIVE LAND TRUST BOARD
& FIJI TIMES LIMITED
High Court Civil Jurisdiction
Byrne, J
19 May, 2000
HBC0533/99
Defamation - striking out Statement of Claim - whether newspaper report of striking out of claim against defendants in HBC0557/98S is defamatory in its natural and ordinary meaning - High Court Rules O.18 r.18(2)
The plaintiff claimed unfair dismissal from NLTB and filed a Writ against the NLTB, which writ was struck out against all defendants except the NLTB. The Fiji Times published a report of the striking out and the plaintiff issued a Writ against the defendants claiming damages for defamation. They allege that in their ordinary meaning the article meant the plaintiff and his solicitor were and are of poor reputation; the court's rejection of the plaintiff's defamation claim against the first defendant was false; the imputation that the court had heard evidence and did not find any defamatory meaning was false; implied low mental capacity; the article had not disclosed that the claim against the 1st defendant had yet to be determined; the article was calculated to disparage the plaintiffs in their persons, character, status and standing, and they suffered humiliation, distress and embarrassment. The second defendant applied to strike out the plaintiffs' claims as they disclose reasonable cause of action were scandalous and vexatious and otherwise an abuse of the court process. It claimed a defence of fair comment in the public interest. The court rejected the allegation that failure to disclose the alleged defamatory words of the letter, it implied the defamation action against the first defendant was frivolous.
Held - (1) The claim is an abuse of the court process because it discloses no reasonable cause of action, is misconceived and has no basis in law. A reasonable, ordinary and intelligent reader would have read the article to mean no more than that as part of the restructuring of the first defendant, a number of employees, including the first plaintiff lost their jobs.
(2) The article's suggestion that the second plaintiff had misread the letter was evidence of the second plaintiff's unreasonable sensitivity, not that he had a low mental capacity, and the second defendant's claim of such an implication is an imagined grievance where none existed.
(3) The fact that the article could possibly have been better written does not mean that a story with gaps is defamatory.
(4) No amendment will not cure inherent weakness in the plaintiffs' claim against the second defendant.
Claim struck out as against 2nd defendant with costs.
Cases referred to in judgment
dist Rt Sir Kamisese Mara v Fiji Times Ltd (1984)30 FLR 119
dist Attorney-General v Shiu Prasad Halka & PSC 18 FLR 210
ref Ratu Naiqama Tawake Lalabalavu v Native Land Trust Board, Coopers & Lybrand, Permanent Secretary for Fijian Affairs & Attorney-General [1999] HBC0557/98S judgment of 10 February, 1999
Kini Marawai for the plaintiffs
Grahame E. Leung for the 2nd defendant
19 May, 2000.
JUDGMENT
Byrne, J
Don Quixote tilted at windmills. In my opinion in so far as their Statement of Claim concerns the 2nd Defendant the Plaintiffs are copying Don Quixote. I shall elaborate.
By letter dated 7th July 1998 the 1st Plaintiff's employment with the 1st Defendant was terminated with effect from the 8th of July 1998.
In its letter, the 1st Defendant wrote to the Plaintiff:
"As you would be aware the selection process was rigorous and focussed on assessing technical, management and change in leadership capacity. It was with regret that the Board in endorsing appointments to the new structure recognised that your competency profile was not a close match with the profile required for the new leadership team."
The Plaintiff was unhappy with his dismissal and so issued a Writ against the Native Land Trust Board, Coopers & Lybrand, the Permanent Secretary for Fijian Affairs and the Attorney-General.
In a Judgment delivered on the 10th of February 1999 Fatiaki J. struck out the Statement of Claim against all the Defendants except the Native Land Trust Board. That was in Civil Action HBC0557 of 1998/S. The Fiji Times the 2nd Defendant in the instant proceedings published a report of the dismissal of the Plaintiff's claim against the three Defendants on February the 11th 1999. That article read as follows:
"An attempt by a former Native Land Trust Board employee to claim damages for defamation of character after his termination was yesterday rejected by the High Court in Suva.
And Justice Daniel Fatiaki ordered Ratu Naiqama Lalabalavu to pay $150 each as costs to Coopers and Lybrand, Permanent Secretary for Fijian Affairs and the Attorney-General for making a frivolous and vexatious allegation.
Ratu Naiqama, who was the NLTB Divisional Estate Manager Western, was made redundant in July as part of the NLTB's restructuring programme.
He was among three others who had their services terminated.
Ratu Naiqama, through his lawyer Penaia Samusamuvodre claimed he was unhappy with board's decision.
He claimed the board colluded with accounting firm Coopers and Lybrand, Permanent Secretary for Fijian Affairs and the Attorney-General and wrote his termination letter.
However, Graham Leung, acting on behalf of the NLTB and Coopers and Lybrand, and Siteri Tabaiwalu on behalf of the Fijian Affairs Permanent Secretary and the A-G, objected to his claims.
They said there was not a shred of evidence to suggest that the letter contained any defamatory sentence.
There was a strong possibility that he may have misread the letter and made an unfounded allegation, they said.
Justice Fatiaki agreed with Ms Tabaiwalu and Mr Leung's submission and struck out the defamation claim against Coopers and Lybrand, Permanent Secretary for Fijian Affairs and the Attorney-General."
On the 16th of November 1999 the Plaintiffs issued a Writ claiming damages for defamation against the Defendants.
On the 17th of November 1999 the 2nd Defendant issued a Summons which is now before me seeking to have the Plaintiff's claims against it struck out on the grounds that they:
(a) disclose no reasonable cause of action;
(b) are scandalous and or vexatious;
(c) are otherwise an abuse of the process of the Court.
The Plaintiffs allege that in its natural and ordinary meaning the article was understood to mean:
(a) That the 1st Plaintiff through, and together with his solicitor, the 2nd Plaintiff, were and are of poor reputation to claim damages for defamation because the 1st Plaintiff was terminated;
(b) That the 1st Plaintiff's defamation claim against the 1st Defendant was rejected by the Court, which is false;
(c) That the Court had heard the evidence about the subject letter, and did not find any defamatory sentence, which is false. But the article did not disclose the alleged defamatory words of the said letter, implying that the defamation action was frivolous as far as the 1st Defendant is concerned;
(d) That "strong possibility that he may have misread" implies low mental capacity in failing to read and understand the termination letter of the 1st Defendant which was addressed to the First Plaintiff, the subject letter in civil action HBC No. 557/98S;
(e) That the 1st Plaintiff, inter alia, in that case, was claiming defamation against the 1st Defendant, the claim which the Court is yet to determine. That was not disclosed;
(f) The said words were calculated to disparage the 1st and 2nd Plaintiff in their persons, character, status and standing;
(g) In consequence, the 1st and 2nd Plaintiffs' reputation was seriously damaged, and they suffered humiliation distress and embarrassment.
The 2nd Defendant denies these allegations and in support of its Summons has filed an affidavit by Samisoni Kakaivalu who is the Editor of the 2nd Defendant. Mr. Kakaivalu deposes among other things that the report published was neither defamatory nor intended to be defamatory of the Plaintiffs and that it was simply fair comment in the public interest.
Mr. Kakaivalu also says that the reportage of the earlier case involving the 1st Plaintiff was made in good faith by a then employee of the 2nd Defendant. It purported to accurately report on a story perceived to be of public interest.
I have received helpful submissions from the parties but cannot accept that the article complained of is in any sense defamatory. I consider that a reasonable, ordinary and intelligent reader would have read the article to mean no more than that as part of the re-structuring of the 1st Defendant, a number of employees, including the 1st Plaintiff lost their jobs.
In my view the article, read as a whole, does not state that the 1st Plaintiff's claim against the 1st Defendant for defamation was rejected. The article clearly states that the defamation claim against Coopers & Lybrand, the Permanent Secretary for Fijian Affairs and Attorney-General was struck out but does not make any such allegation concerning the 1st Defendant. I do not agree that because the article did not disclose the alleged defamatory words of the letter it implied that the defamation action against the 1st Defendant was frivolous. Likewise I reject the meaning attributed by the Plaintiffs in allegation (d). To put such a construction on the article is in my opinion unjustified and evidence only, if that, of the fact that the 2nd Plaintiff has an unreasonable sensitivity. Like Don Quixote it seems to me the 2nd Defendant in claiming such an implication is simply imagining a grievance where none exists or reasonably could not be considered to exist.
The complaint in (e) in my view goes only to the fullness of the report. The fact that the article could possibly have been better written does not mean that a story with gaps is defamatory.
In Ratu Sir Kamisese Mara v. Fiji Times Ltd (1984) 30 FLR 119 Court of Appeal said at p.131:
"We remind ourselves also that where Judge (sic) is sitting alone to try a libel action without a jury the only questions he has to ask himself are 'Is the natural and ordinary meaning or the words that which is alleged in the statement of claim?' and: (If not) what, if any, less injurious defamatory meaning do they bear?"
I have read the various cases cited by the Plaintiffs in opposing the Summons and say that they are distinguishable on the facts from those in the instant case.
The power to strike out a Statement of Claim must always be used sparingly - for example AG v. Shiu Prasad Halka & PSC 18 FLR 210 and many other cases too numerous to mention in this judgment. However in so far as the Plaintiffs seem to place some reliance on Shiu Halka it must be observed that that case is distinguishable from the present because the question in Shiu Halka concerned the right of the Crown to dismiss its servants at will whereas the present case is an action in defamation.
In Gatley on Libel and Slander Ninth Edition, paragraph 26.42, page 675 the author states:
"If it appears to the Judge that none of the words complained of are capable of bearing the meaning or meanings attributed to them, he may dismiss the claim ..."
The Plaintiff complains in its submissions that the 2nd Defendant in relying on the affidavit of Samisoni Kakaivalu is attempting to allege evidence which is forbidden under Order 18 Rule 18(2) of the High Court Rules. In my opinion there is no merit in this complaint. In the note to the equivalent rule in the 1993 Supreme Court Practice at p.332 it is said:
"On an application to strike out an originating summons on the ground that it discloses no reasonable cause of action, the prohibition in para. (2) against adducing evidence on the application itself does not apply to an affidavit already put in as supporting the originating summons."
In my judgment the Plaintiffs' Statement of Claim is an abuse of the Court process because it discloses no reasonable cause of action, is misconceived and has no basis in law. I am also satisfied that any amendment will not cure the Plaintiffs' claim against the 2nd Defendant of its inherent weakness because in my view their case is plainly unarguable.
For these reasons I grant the Orders sought in the 2nd Defendant's Summons and Order the Plaintiffs to pay the 2nd Defendant's costs which I fix at $300.00.
Application granted.
IN THE HIGH COURT OF FIJI
RATU NAIQAMA TAWAKE LALABALAVU
& PENAIA DRIU SAMUSAMUVODRE
v
NATIVE LAND TRUST BOARD
& FIJI TIMES LIMITED
High Court Civil Jurisdiction
Byrne, J
19 May, 2000
HBC0533/99
Defamation - striking out Statement of Claim - whether newspaper report of striking out of claim against defendants in HBC0557/98S is defamatory in its natural and ordinary meaning - High Court Rules O.18 r.18(2)
The plaintiff claimed unfair dismissal from NLTB and filed a Writ against the NLTB, which writ was struck out against all defendants except the NLTB. The Fiji Times published a report of the striking out and the plaintiff issued a Writ against the defendants claiming damages for defamation. They allege that in their ordinary meaning the article meant the plaintiff and his solicitor were and are of poor reputation; the court's rejection of the plaintiff's defamation claim against the first defendant was false; the imputation that the court had heard evidence and did not find any defamatory meaning was false; implied low mental capacity; the article had not disclosed that the claim against the 1st defendant had yet to be determined; the article was calculated to disparage the plaintiffs in their persons, character, status and standing, and they suffered humiliation, distress and embarrassment. The second defendant applied to strike out the plaintiffs' claims as they disclose reasonable cause of action were scandalous and vexatious and otherwise an abuse of the court process. It claimed a defence of fair comment in the public interest. The court rejected the allegation that failure to disclose the alleged defamatory words of the letter, it implied the defamation action against the first defendant was frivolous.
Held - (1) The claim is an abuse of the court process because it discloses no reasonable cause of action, is misconceived and has no basis in law. A reasonable, ordinary and intelligent reader would have read the article to mean no more than that as part of the restructuring of the first defendant, a number of employees, including the first plaintiff lost their jobs.
(2) The article's suggestion that the second plaintiff had misread the letter was evidence of the second plaintiff's unreasonable sensitivity, not that he had a low mental capacity, and the second defendant's claim of such an implication is an imagined grievance where none existed.
(3) The fact that the article could possibly have been better written does not mean that a story with gaps is defamatory.
(4) No amendment will not cure inherent weakness in the plaintiffs' claim against the second defendant.
Claim struck out as against 2nd defendant with costs.
Cases referred to in judgment
dist Rt Sir Kamisese Mara v Fiji Times Ltd (1984)30 FLR 119
dist Attorney-General v Shiu Prasad Halka & PSC 18 FLR 210
ref Ratu Naiqama Tawake Lalabalavu v Native Land Trust Board, Coopers & Lybrand, Permanent Secretary for Fijian Affairs & Attorney-General [1999] HBC0557/98S judgment of 10 February, 1999
Kini Marawai for the plaintiffs
Grahame E. Leung for the 2nd defendant
19 May, 2000.
JUDGMENT
Byrne, J
Don Quixote tilted at windmills. In my opinion in so far as their Statement of Claim concerns the 2nd Defendant the Plaintiffs are copying Don Quixote. I shall elaborate.
By letter dated 7th July 1998 the 1st Plaintiff's employment with the 1st Defendant was terminated with effect from the 8th of July 1998.
In its letter, the 1st Defendant wrote to the Plaintiff:
"As you would be aware the selection process was rigorous and focussed on assessing technical, management and change in leadership capacity. It was with regret that the Board in endorsing appointments to the new structure recognised that your competency profile was not a close match with the profile required for the new leadership team."
The Plaintiff was unhappy with his dismissal and so issued a Writ against the Native Land Trust Board, Coopers & Lybrand, the Permanent Secretary for Fijian Affairs and the Attorney-General.
In a Judgment delivered on the 10th of February 1999 Fatiaki J. struck out the Statement of Claim against all the Defendants except the Native Land Trust Board. That was in Civil Action HBC0557 of 1998/S. The Fiji Times the 2nd Defendant in the instant proceedings published a report of the dismissal of the Plaintiff's claim against the three Defendants on February the 11th 1999. That article read as follows:
"An attempt by a former Native Land Trust Board employee to claim damages for defamation of character after his termination was yesterday rejected by the High Court in Suva.
And Justice Daniel Fatiaki ordered Ratu Naiqama Lalabalavu to pay $150 each as costs to Coopers and Lybrand, Permanent Secretary for Fijian Affairs and the Attorney-General for making a frivolous and vexatious allegation.
Ratu Naiqama, who was the NLTB Divisional Estate Manager Western, was made redundant in July as part of the NLTB's restructuring programme.
He was among three others who had their services terminated.
Ratu Naiqama, through his lawyer Penaia Samusamuvodre claimed he was unhappy with board's decision.
He claimed the board colluded with accounting firm Coopers and Lybrand, Permanent Secretary for Fijian Affairs and the Attorney-General and wrote his termination letter.
However, Graham Leung, acting on behalf of the NLTB and Coopers and Lybrand, and Siteri Tabaiwalu on behalf of the Fijian Affairs Permanent Secretary and the A-G, objected to his claims.
They said there was not a shred of evidence to suggest that the letter contained any defamatory sentence.
There was a strong possibility that he may have misread the letter and made an unfounded allegation, they said.
Justice Fatiaki agreed with Ms Tabaiwalu and Mr Leung's submission and struck out the defamation claim against Coopers and Lybrand, Permanent Secretary for Fijian Affairs and the Attorney-General."
On the 16th of November 1999 the Plaintiffs issued a Writ claiming damages for defamation against the Defendants.
On the 17th of November 1999 the 2nd Defendant issued a Summons which is now before me seeking to have the Plaintiff's claims against it struck out on the grounds that they:
(a) disclose no reasonable cause of action;
(b) are scandalous and or vexatious;
(c) are otherwise an abuse of the process of the Court.
The Plaintiffs allege that in its natural and ordinary meaning the article was understood to mean:
(a) That the 1st Plaintiff through, and together with his solicitor, the 2nd Plaintiff, were and are of poor reputation to claim damages for defamation because the 1st Plaintiff was terminated;
(b) That the 1st Plaintiff's defamation claim against the 1st Defendant was rejected by the Court, which is false;
(c) That the Court had heard the evidence about the subject letter, and did not find any defamatory sentence, which is false. But the article did not disclose the alleged defamatory words of the said letter, implying that the defamation action was frivolous as far as the 1st Defendant is concerned;
(d) That "strong possibility that he may have misread" implies low mental capacity in failing to read and understand the termination letter of the 1st Defendant which was addressed to the First Plaintiff, the subject letter in civil action HBC No. 557/98S;
(e) That the 1st Plaintiff, inter alia, in that case, was claiming defamation against the 1st Defendant, the claim which the Court is yet to determine. That was not disclosed;
(f) The said words were calculated to disparage the 1st and 2nd Plaintiff in their persons, character, status and standing;
(g) In consequence, the 1st and 2nd Plaintiffs' reputation was seriously damaged, and they suffered humiliation distress and embarrassment.
The 2nd Defendant denies these allegations and in support of its Summons has filed an affidavit by Samisoni Kakaivalu who is the Editor of the 2nd Defendant. Mr. Kakaivalu deposes among other things that the report published was neither defamatory nor intended to be defamatory of the Plaintiffs and that it was simply fair comment in the public interest.
Mr. Kakaivalu also says that the reportage of the earlier case involving the 1st Plaintiff was made in good faith by a then employee of the 2nd Defendant. It purported to accurately report on a story perceived to be of public interest.
I have received helpful submissions from the parties but cannot accept that the article complained of is in any sense defamatory. I consider that a reasonable, ordinary and intelligent reader would have read the article to mean no more than that as part of the re-structuring of the 1st Defendant, a number of employees, including the 1st Plaintiff lost their jobs.
In my view the article, read as a whole, does not state that the 1st Plaintiff's claim against the 1st Defendant for defamation was rejected. The article clearly states that the defamation claim against Coopers & Lybrand, the Permanent Secretary for Fijian Affairs and Attorney-General was struck out but does not make any such allegation concerning the 1st Defendant. I do not agree that because the article did not disclose the alleged defamatory words of the letter it implied that the defamation action against the 1st Defendant was frivolous. Likewise I reject the meaning attributed by the Plaintiffs in allegation (d). To put such a construction on the article is in my opinion unjustified and evidence only, if that, of the fact that the 2nd Plaintiff has an unreasonable sensitivity. Like Don Quixote it seems to me the 2nd Defendant in claiming such an implication is simply imagining a grievance where none exists or reasonably could not be considered to exist.
The complaint in (e) in my view goes only to the fullness of the report. The fact that the article could possibly have been better written does not mean that a story with gaps is defamatory.
In Ratu Sir Kamisese Mara v. Fiji Times Ltd (1984) 30 FLR 119 Court of Appeal said at p.131:
"We remind ourselves also that where Judge (sic) is sitting alone to try a libel action without a jury the only questions he has to ask himself are 'Is the natural and ordinary meaning or the words that which is alleged in the statement of claim?' and: (If not) what, if any, less injurious defamatory meaning do they bear?"
I have read the various cases cited by the Plaintiffs in opposing the Summons and say that they are distinguishable on the facts from those in the instant case.
The power to strike out a Statement of Claim must always be used sparingly - for example AG v. Shiu Prasad Halka & PSC 18 FLR 210 and many other cases too numerous to mention in this judgment. However in so far as the Plaintiffs seem to place some reliance on Shiu Halka it must be observed that that case is distinguishable from the present because the question in Shiu Halka concerned the right of the Crown to dismiss its servants at will whereas the present case is an action in defamation.
In Gatley on Libel and Slander Ninth Edition, paragraph 26.42, page 675 the author states:
"If it appears to the Judge that none of the words complained of are capable of bearing the meaning or meanings attributed to them, he may dismiss the claim ..."
The Plaintiff complains in its submissions that the 2nd Defendant in relying on the affidavit of Samisoni Kakaivalu is attempting to allege evidence which is forbidden under Order 18 Rule 18(2) of the High Court Rules. In my opinion there is no merit in this complaint. In the note to the equivalent rule in the 1993 Supreme Court Practice at p.332 it is said:
"On an application to strike out an originating summons on the ground that it discloses no reasonable cause of action, the prohibition in para. (2) against adducing evidence on the application itself does not apply to an affidavit already put in as supporting the originating summons."
In my judgment the Plaintiffs' Statement of Claim is an abuse of the Court process because it discloses no reasonable cause of action, is misconceived and has no basis in law. I am also satisfied that any amendment will not cure the Plaintiffs' claim against the 2nd Defendant of its inherent weakness because in my view their case is plainly unarguable.
For these reasons I grant the Orders sought in the 2nd Defendant's Summons and Order the Plaintiffs to pay the 2nd Defendant's costs which I fix at $300.00.
Application granted.
Fijileaks: It is shocking that instead of condemning the Speaker's salary, the Emoluments Report has recommended that Ratu Naiqama's salary be increased because of the sanctity of the Speaker's Chair in Parliament.
Unfortunately, Ratu Naiqama's CV and Coup related Conviction should have been used to rule him out for the job but no, after losing the 2022 election as a PAP candidate, Rabuka made him Speaker of Parliament
Lalabalavu v Director of Public Prosecutions [2005] FJHC 74; HBM0015.2004 (8 April 2005)
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL MOTION ACTION NO.: HBM0015 of 2004 LABASA
BETWEEN:
RATU NAIQAMA LALABALAVU
APPLICANT
AND:
THE DIRECTOR OF PUBLIC PROSECUTION
RESPONDENT
Mr. K. Vuataki for the Applicant
Mr. W. Kuruisaqila for the Respondent
JUDGMENT
The application before me is made pursuant to Section 41 of the 1997 Constitution and the High Court (Constitutional Redress) Rules 1998. The motion seeks a declaration that the applicant’s Constitutional right to a trial within reasonable time and right to fair trial under Section 29 of the Constitution was breached. He is seeking an order permanently staying further proceedings by the Magistrate’s Court of Criminal Case in State v. Ratu Naiqama Lalabalavu - Criminal Action 172 of 2004 at Labasa Magistrate’s Court.
The applicant filed three affidavits:
(a) first sworn on 30th November 2004
(b) supplementary affidavit sworn on 24th January 2005
(c) supplementary affidavit sworn on 11th February 2005.
The applicant was initially charged with two others for the offence of unlawful assembly. The events are alleged to have occurred between 4th July 2000 and 3rd August 2000at Sukanaivalu Barracks in Labasa. The charges were filed on 8th November 2000.
The chronology of events since filing of charge is as follows:
I have had both written and oral submissions from counsels. If I may say part of respondent’s written submissions dealt with stay on grounds of abuse of process. That is not the ground on which the applicant is proceeding. Abuse of process is not alleged.
Mr. Vuataki relied heavily on the case of Apaitia Seru & Anthony Frederick Stevens v. the State – Criminal Appeals AAU0041 and 42 of 1991, where the Court of Appeal considered what is the applicable law in Fiji in case of delay. It adopted the principles on delay as considered in Martin v. Tauranga District Court – [1995] 2 NZLR 419.
At page 9 of the judgment the Court of Appeal laid out what ought to be the approach of courts and what factors to consider in applications for stay on grounds of delay.
“The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith [ R v Smith (1989) 52 CCC (3d) 97], ‘(i)t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?’ .... While the court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows:
1. the length of the delay;
2. waiver of time periods;
3. the reasons for the delay, including
(a) inherent time requirements of the case;
(b) actions of the accused;
(c) actions of the Crown;
(d) limits on institutional resources, and
(e) other reasons for delay, and
4. prejudice to the accused. (12-13)”
In Attorney-General’s Reference No. 1 of 1990 [1992] 3 ALL ER 169 Lord Lane at page 176 cautioned against permanent stays being granted too readily. He stated that:
“Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would only be a short time before the public, understandably, viewed the process with suspicion and mistrust. We respectfully adopt the reasoning of Brennan J in Jago v. District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23.
In principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution. Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay.”
With those above remarks I shall now consider various relevant factors:
The applicant deposes that he was called to Sukanaivalu Barracks by Tui Labasa who died on 11th February 2002. He also deposed that one Ratu Orisi Vuki had been sent by Tui Labasa to call the applicant to the barracks and Ratu Orisi Vuki died on 23rd June 2003.
When questioned if the defence had statements from these various deceased witnesses, Mr. Vuataki admitted they had not taken statements from them. Without the statements, the court is left to speculate as to the nature of the evidence and its relevance to the defence. In paragraph 9 of his supplementary affidavit, sworn on 11th February 2005 the applicant deposes that a number of Army officers had also visited him. The applicant could have subpoenaed any of these officers if he considered their evidence relevant. The applicant must show that the evidence of the alleged deceased witnesses would be relevant as to disputed material facts in issue.
The applicant also deposed that he was prejudiced in that the original statements of all witnesses were not disclosed but only typed statements of witnesses were provided. The normal practice in Fiji is for police to hand-write the statements of witnesses. Often the handwriting is impossible to read so typed statements are given. If the counsel had difficulty getting a witness to admit a statement was his, the counsel could easily have made an application to the learned magistrate to ask prosecution to show the original statement to the witness. The original hand-written statements are not released to the defence but only photocopies or typed version. If the counsel failed in presentation of the case, that cannot be made a ground for stay.
Mr. Vuataki also submitted that his client was a public figure. He is the Minister for Lands, Leader of political party and a traditional leader and therefore occupied prominent position. He submitted that this was a high profile case with lot of media attention. He relied on authority of Apaitia Seru where at page 13 the Court of Appeal stated “to have serious, high profile charges handing over ones head for more than four years, with the ultimate spectre of a possible prison sentence, is in itself prejudicial”. He said in such a case there was no need to show prejudice.
The activities of those who occupy prominent position in society generally attract attention of the media. That is inevitable part of such occupations. I also do not lose sight of the fact that the maximum penalty for the offence is one year.
In Apaitia Seru the delay was institutional delay principally in the courts – both by the Magistrates Court during committal proceedings and later in the High Court.
One aspect of this case which is cause for disquiet is the way this application came to be made. First, as I have said a similar application was made in the Magistrate courts on the day trial was to commence. Obviously the Magistrate had no jurisdiction to hear a constitutional redress issue. The applicant again went to rest and six days before the defence was to open its case, in the Magistrates Court he filed this application. He had all the time after 31st August 2004 to file this application but filed it during the legal vacation.
At the time of the hearing of this application, the trial was well and truly over with only the judgment of the court left to be delivered on 4th April 2005. One would expect such applications to be made well ahead of the commencement of the hearing proper of the criminal trial so the outcome is known before the hearing date.
The delay in this case has to be seen in its proper context. There are lengthy delays as a result of applicant wishing to make representations to the DPP, lengthy delays due to absence of one or other accused. This is not a proper case where a permanent stay is warranted. The application is accordingly dismissed with costs which I summarily fix in the sum of $300.00.
[ Jiten Singh ]
JUDGE
At Suva
8th April 2005
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL MOTION ACTION NO.: HBM0015 of 2004 LABASA
BETWEEN:
RATU NAIQAMA LALABALAVU
APPLICANT
AND:
THE DIRECTOR OF PUBLIC PROSECUTION
RESPONDENT
Mr. K. Vuataki for the Applicant
Mr. W. Kuruisaqila for the Respondent
JUDGMENT
The application before me is made pursuant to Section 41 of the 1997 Constitution and the High Court (Constitutional Redress) Rules 1998. The motion seeks a declaration that the applicant’s Constitutional right to a trial within reasonable time and right to fair trial under Section 29 of the Constitution was breached. He is seeking an order permanently staying further proceedings by the Magistrate’s Court of Criminal Case in State v. Ratu Naiqama Lalabalavu - Criminal Action 172 of 2004 at Labasa Magistrate’s Court.
The applicant filed three affidavits:
(a) first sworn on 30th November 2004
(b) supplementary affidavit sworn on 24th January 2005
(c) supplementary affidavit sworn on 11th February 2005.
The applicant was initially charged with two others for the offence of unlawful assembly. The events are alleged to have occurred between 4th July 2000 and 3rd August 2000at Sukanaivalu Barracks in Labasa. The charges were filed on 8th November 2000.
The chronology of events since filing of charge is as follows:
- 8th November 2000 - charges filed.
- 13th November 2000 - plea deferred at request of defence counsel.
- 14th December 2000 - proceedings adjourned for defence to make representations to the DPP.
- 14th February 2001 - proceedings adjourned for defence to make representations to the DPP.
- 5th March 2001 - proceedings adjourned to allow defence to make representations to the DPP
- 25th April 2001 - proceedings adjourned to allow defence time to have further discussions with DPP.
- 12th June 2001 - proceedings adjourned to allow DPP to consider the submissions.
- 6th August 2001 - proceedings adjourned to give DPP more time to consider submissions.
- 24th August 2001 - no presence of accused as presence was excused.
- 21st September 2001 - no presence of accused as presence excused.
- 2nd November 2001 - prosecution seeks to obtain statements from people. Also disclosures not served.
- 11th February 2002 - Second accused absent as sick.
- 12th February 2002 - proceedings adjourned. Second accused deceased. Charges against 2nd accused withdrawn.
- 12th July 2002 - hearing adjourned. Magistrate in Conference in Suva.
- 5th August 2002 - adjourned. 1st accused not present. Magistrate in Suva.
- 15th August 2002 - 1st accused absent.
- 30th September 2002 - 1st accused absent. Bench warrant ordered.
- 10th October 2002 - Special call as 1st accused arrested. Bench warrant cancelled.
- 2nd December 2002
- 17th March 2003 - 3rd accused not present.
- 14th August 2003 - accused absent. Hearing aborted.
- 22nd August 2003 - accused absent.
- 8th September 2003 - 1st accused – not present. Presence was excused.
- 13th October 2003 - DPP’s file sent to Suva for DPP to decide whether to proceed with prosecution or not.
- 1st December 2003 - accuseds not present. Charges withdrawn. Bench warrant ordered against the two accused.
- 5th January 2004 - accuseds arrested and brought to court. Bench warrants cancelled.
- 2nd February 2004 - hearing fixed for24th to 28th May 2004.
- 5th April 2004 - case called in absence of accused, adjourned to 10th May 2004.
- 10th May 2004 - All coup related cases withdrawn under Section 201(2)(b)(a) of Criminal Procedure Code Amalgamated Charge for Unlawful Assembly filed. No objection from defence.
- 24th May 2004 - Motion similar to present motion filed in Magistrate’s Court. Motion filed on the very day of trial.
I have had both written and oral submissions from counsels. If I may say part of respondent’s written submissions dealt with stay on grounds of abuse of process. That is not the ground on which the applicant is proceeding. Abuse of process is not alleged.
Mr. Vuataki relied heavily on the case of Apaitia Seru & Anthony Frederick Stevens v. the State – Criminal Appeals AAU0041 and 42 of 1991, where the Court of Appeal considered what is the applicable law in Fiji in case of delay. It adopted the principles on delay as considered in Martin v. Tauranga District Court – [1995] 2 NZLR 419.
At page 9 of the judgment the Court of Appeal laid out what ought to be the approach of courts and what factors to consider in applications for stay on grounds of delay.
“The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith [ R v Smith (1989) 52 CCC (3d) 97], ‘(i)t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?’ .... While the court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows:
1. the length of the delay;
2. waiver of time periods;
3. the reasons for the delay, including
(a) inherent time requirements of the case;
(b) actions of the accused;
(c) actions of the Crown;
(d) limits on institutional resources, and
(e) other reasons for delay, and
4. prejudice to the accused. (12-13)”
In Attorney-General’s Reference No. 1 of 1990 [1992] 3 ALL ER 169 Lord Lane at page 176 cautioned against permanent stays being granted too readily. He stated that:
“Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would only be a short time before the public, understandably, viewed the process with suspicion and mistrust. We respectfully adopt the reasoning of Brennan J in Jago v. District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23.
In principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution. Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay.”
With those above remarks I shall now consider various relevant factors:
- Length of Delay:
- Waiver of time periods
- Reasons for the Delay
- Limits on Resources
- Prejudice to the Accused
The applicant deposes that he was called to Sukanaivalu Barracks by Tui Labasa who died on 11th February 2002. He also deposed that one Ratu Orisi Vuki had been sent by Tui Labasa to call the applicant to the barracks and Ratu Orisi Vuki died on 23rd June 2003.
When questioned if the defence had statements from these various deceased witnesses, Mr. Vuataki admitted they had not taken statements from them. Without the statements, the court is left to speculate as to the nature of the evidence and its relevance to the defence. In paragraph 9 of his supplementary affidavit, sworn on 11th February 2005 the applicant deposes that a number of Army officers had also visited him. The applicant could have subpoenaed any of these officers if he considered their evidence relevant. The applicant must show that the evidence of the alleged deceased witnesses would be relevant as to disputed material facts in issue.
The applicant also deposed that he was prejudiced in that the original statements of all witnesses were not disclosed but only typed statements of witnesses were provided. The normal practice in Fiji is for police to hand-write the statements of witnesses. Often the handwriting is impossible to read so typed statements are given. If the counsel had difficulty getting a witness to admit a statement was his, the counsel could easily have made an application to the learned magistrate to ask prosecution to show the original statement to the witness. The original hand-written statements are not released to the defence but only photocopies or typed version. If the counsel failed in presentation of the case, that cannot be made a ground for stay.
Mr. Vuataki also submitted that his client was a public figure. He is the Minister for Lands, Leader of political party and a traditional leader and therefore occupied prominent position. He submitted that this was a high profile case with lot of media attention. He relied on authority of Apaitia Seru where at page 13 the Court of Appeal stated “to have serious, high profile charges handing over ones head for more than four years, with the ultimate spectre of a possible prison sentence, is in itself prejudicial”. He said in such a case there was no need to show prejudice.
The activities of those who occupy prominent position in society generally attract attention of the media. That is inevitable part of such occupations. I also do not lose sight of the fact that the maximum penalty for the offence is one year.
In Apaitia Seru the delay was institutional delay principally in the courts – both by the Magistrates Court during committal proceedings and later in the High Court.
One aspect of this case which is cause for disquiet is the way this application came to be made. First, as I have said a similar application was made in the Magistrate courts on the day trial was to commence. Obviously the Magistrate had no jurisdiction to hear a constitutional redress issue. The applicant again went to rest and six days before the defence was to open its case, in the Magistrates Court he filed this application. He had all the time after 31st August 2004 to file this application but filed it during the legal vacation.
At the time of the hearing of this application, the trial was well and truly over with only the judgment of the court left to be delivered on 4th April 2005. One would expect such applications to be made well ahead of the commencement of the hearing proper of the criminal trial so the outcome is known before the hearing date.
The delay in this case has to be seen in its proper context. There are lengthy delays as a result of applicant wishing to make representations to the DPP, lengthy delays due to absence of one or other accused. This is not a proper case where a permanent stay is warranted. The application is accordingly dismissed with costs which I summarily fix in the sum of $300.00.
[ Jiten Singh ]
JUDGE
At Suva
8th April 2005
BIMAN PRASAD, 'Proof of Roti and Dhal is in the Eating'
