IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION
Crim. Misc. Case No: HAM 174/2013

BETWEEN:

MALAKAI SOBANIVALU
APPLICANT

AND:

STATE
RESPONDENTS

COUNSEL : Mr N Vere for Applicant
Mr S Nath for the Respondent 

Date of Hearing: 04/05/2014
Date of Ruling: 16/05/2014

RULING ON STAY

[01] The applicant filed Notice of Motion for an order for permanent Stay of the application in the Suva Magistrate Court Criminal Case No: 05 of 2011. The application is made pursuant to Section 215 of the Criminal Procedure Decree 2009 and the Inherent Jurisdiction of the High Court. 

[02] The above named Applicant is charged with the following offence:

FIRST COUNT
Statement of Offence (a)

UNLAWFUL ASSEMBLY: CONTRARY TO SECTION 13(a) of the Public Order Act, Chapter 20 of the Laws of Fiji.

Particulars of Offence (b)

MALAKAI SOBANIVALU on the 16th day of May 2011 in Tubou, Lau in the Eastern Division wilfully and unlawfully took part in a meeting in a public place namely, Bose ko Viti Hall in Tubou, Lakeba for which no permit had been issued by the OFFICE OF THE COMMISSIONER EASTERN. 

[03] The Applicant submits that the Learned trial magistrate erred in law and fact in finding that there is a case to answer against him based on various abuses of the court process by the Respondent. He filed his application on the following grounds:

a) that there is an abuse of court process in that, the police did not arrest him as required by law to do so before locking him up in the cell;

b) that there is an abuse of court process in that, the Respondent charged the Applicant with unlawful assembly when the offence is an offence not known to law under Section 13(a) of the Public Order Act.Cap.20 but an offence has been under Section 86 and 87 of the Penal Code Cap.17 which has been abrogated since the coming into force of the Crimes Decree No: 44 of 2009 sometimes in November 2009.

c) that there is an abuse of the court process in which the police first charged the Applicant with Giving False Information to a Public Servant contrary to Section 201 of the Crimes Decree when on law, he is entitled to make any statement he wish after being cautioned under judges rule number 2;

d) that there is an abuse of the court process when the Learned trial magistrate erred in finding a case to answer against the Applicant when prosecution witness police constable Jone Liwaki (PW4) who was present in the alleged meeting told the court on oath that the Applicant did not commit any offence by simply telling the meeting what Roko Uluilakeba Mara told the Applicant. There was no discussion of what he has informed the meeting.

[04] The Petitioner in this case was charged in the Suva Magistrate's for the offence of Unlawful Assembly contrary to Section 13(a) of the Public Order Act, Chapter 20 of the Laws of Fiji. The matter was first called in the Suva Magistrate's court on 13/04/2010. The trial commenced on 16/5/2012. After the closure of prosecution case, the defence filed an application for "No Case To Answer". Ruling on no case to answer was delivered on 11/07/2013 and the defence case was fixed for 24/07/2013. By a Motion dated the 21/07/2013, the Petitioner applied to this court for Permanent Stay of the proceedings in the Suva Magistrates' Court. 

JURISDICTION
[05] Justice Goundar thoroughly canvassed the Inherent Jurisdiction of the High Court in Balaggan v State [2012] FJHC 923. He said that:

It must be said that "inherent jurisdiction" falls within that category of legal terms often invoked in court, yet rarely understood in a tangible and well-defined sense. The jurisdiction was originally conferred on the superior courts of the common law in England, which were also courts of record. It's essential function was to provide such courts with an array of powers, independently of statute or other rule of law, necessary to protect their capacity to administer justice and retain their nature as superior courts.

In Fiji, the equivalent of the superior courts of the common law is the High Court. The High Court undoubtedly exercise original jurisdiction. The jurisdiction of the High Court was spelt out in section 120 of the constitution. 

Currently, the jurisdiction is provided by section 6(1) of the Administration of Justice Decree 2009:

The High Court has unlimited original jurisdiction to hear and determine any civil or criminal jurisdiction proceedings under any law and such other as is conferred on it under this Decree of or any other law. 

Her Ladyship Shameem J stated as follows in State v Naitini [2001] FJHC 327:

"There is no reason to invoke the inherent jurisdiction of this court, when statues provide remedies for all the complaints made by affidavit."

In addition to above, Her Ladyship also stated in State v Naitini (supra):

"If the State or the Defence is dissatisfied with [various decisions by the Magistrate], an Appeal can be lodged in the High Court. There is no reason to invoke the inherent jurisdiction of the High Court when the Criminal Procedure Decree provides a remedy for this sort of application" 

Her Ladyship Shameem J further held that:

"The power must be exercised sparingly"

In DPP v Hussein (The Times) June 1 1994, the Divisional Court said that: "the order is an exceptional one, and should never be made where there other ways of achieving a fair hearing of the case".

In State v Jagath Karunaratna (HAM 111 of 2012) Hon. Justice Temo held that:

"First of all I would like to mention something about the state's notice of motion for the stay of the learned Chief Magistrate's decision of 5th of July, 2012, filed on 9th July 2012.It is trite law that a stay application in a criminal proceeding is an exceptional remedy available to either parties, to prevent abuse of the court's process. It should be used if other processes or procedure are available to prevent injustice, in the particular circumstances of a case. In this case, orders 1 in the notice of motion and prayer no.10 (1) in the Petition of Appeal were totally unnecessary. The learned Chief Magistrate's orders on 5th July 2012 were totally adequate to contain the situation pending the appeal in the High Court. In my view, the stay application was unnecessary and inappropriate. I therefore dismiss the state's application for those orders".

[06] The following information gathered on perusal of the Magistrate Court record No: 005/2011. On 17/07/2012, when the prosecution closed their case, the defence Counsel Mr Vere sought an adjournment (21) days to file an application for no case to answer. When this case was called on 28/08/2012, the prosecution moved a date to file their response to the application of no case to answer. Although an early date was offered, the defence counsel agreed to take 01/10/2012 for ruling. As the court was not ready with the ruling the matter then adjourned for ruling on 01/11/2012. As the learned magistrate was on sick leave the matter then adjourned for 03/12/2012. The learned magistrate on 03/12/2012, adjourned the matter for ruling on 06/02/2013 after considering Mr Vere's availability as he was due to attend Island Court sittings.

[07] The learned magistrate then went on maternity leave and this matter was adjourned to 08/04/2013 by another magistrate. On 08/04/2013, the learned magistrate though offered an early date for ruling, the defence counsel Mr. Vere requested 11/07/2013. Finally the ruling was delivered on that day.

[08] The learned magistrate had done extensive reading as this was the first case filed under Section 13(a) of the Public Order Act, Cap.20 before her. 

[09] As per court record the defence counsel Mr Vere on 03/12/2012 and 08/04/2013 had sought longer adjournment to proceed with stay proceedings in the High Court.

[10] The delay in ruling was due to judicial availability as the learned magistrate went on maternity leave. The Petitioner also contributed by seeking long adjournments. 

[11] Considering all the materials submitted to this court, there has been no unjustified delay on the part of the Respondent in bringing this matter to court. The delay was due to the learned magistrate's maternity leave and the Applicant's counsel's request for long adjournment. Therefore invoking the inherent jurisdiction of the High Court is totally unnecessary. In my view, the stay application was unnecessary and inappropriate. I therefore, dismiss the Applicant's application for Permanent Stay on all proceedings in Suva Magistrate Court Criminal case No: 005 of 2011.

[12] The State has all the liberty to continue their case filed already against the Applicant in the Suva Magistrate Court.

[13] The Applicant has 30 days to appeal.

P Kumararatnam
JUDGE

At Suva
16/05/2014