The Civil High Court will deliver its ruling on October 14 on Leave to Appeal applications in Richard Naidu’s case.

Richard Naidu through his counsel filed a Notice of Motion for Leave to Appeal from High Court to the Fiji Court of Appeal and for Stay Pending Appeal on decisions delivered on September 1 and September 2, 2022.

Naidu is alleged to have scandalised and ridiculed the courts and the judiciary in a Facebook post where he made comments in relation to a judgment delivered by the High Court in Suva.

The Attorney-General Aiyaz Sayed-Khaiyum has filed the proceedings for contempt against Naidu.

Naidu appeared before Civil High Court Judge Justice Judge Nanayakkara yesterday, represented by lawyers, Kings Counsel Martin Daubney along with lawyers Jon Apted, Wen Fi Chen, and Filimoni Vosarogo.

The Leave to Appeal was filed seeking orders that:

• Naidu be granted leave to appeal to the Fiji Court of Appeal from the interlocutory ruling of his Lordship, Justice Jude Nanayakkara, delivered on September 2, 2022, wherein the Court dismissed the Respondent’s summons dated July 15, 2022 (Setting-Aside Sum- mons) to set aside the grant of leave to issue committal proceedings and other orders (Decision)
• He may be granted leave to appeal to the Fiji Court of Appeal from the interlocutory ruling of his Lordship Justice Jude Nanayakkara, delivered on September 1, 2022, wherein the Court dismissed the Respondent’s application by Summons dated July 29, 2022 (Oral Hearing Summons) for an oral hearing of his Summons to set aside the grant of leave to issue committal proceedings for cross-examination and other orders (Decision)
• The time for bringing such appeal be extended by seven days from the date on which the order granting leave may be made and
• That these proceedings be stayed pending the outcome of the appeal
• The costs of this Motion be costs in cause and
• As the Court otherwise deems just.

In the hearing yesterday, KC Daubney said there were fundamental errors made by the court on what had transpired on July 26, 2022.

He said the parties were in court with full expectation that the matter was listed for mention as on the cause list however; oral submissions were heard by the call of His Lordship.

He said according to the court transcript, Justice Nanayakkara said he would prefer to deal with the setting aside application first.

KC Daubney said the applicant’s counsel had raised her preliminary objections and before Naidu’s counsel rose, the Judge said he would order written submissions on the Setting-Aside Summons.

He claimed that the A-G who is the applicant in this matter, failed to inform the court about his relationship with Naidu.

He further said it was the basis of the resulting errors that had led the court to be conclusion that Naidu had no right to an oral hearing as sought.

He said in that respect, Naidu was deprived of a fundamental right to be heard on the Setting-Aside Summons.

He said the events of July 26, 2022, had led to denial of Naidu’s fundamental rights.

KC Daubney also said his client was void of his proper Constitutional rights, his rights for representation of a counsel of choice, and to cross-examine the applicant who is the A-G in this case.

He said this case was not a summary case of contempt or not alleged to be a case of summary contempt.

He said the process was of summary which meant his client had available to him all of his Constitutional rights and Common Law rights.

KC Daubney claimed that the applicant who is the A-G was a senior member of an executive Government and sought to invoke the High Court’s criminal sanctions.

He said in the ruling made by the court in relations to an application seeking to cross-examine the applicant, the court refused to allow the cross-examination.

He said the point to cross-examine the A-G was to establish whether or not he had properly informed the court of the matter as listed in the Ex-Parte Application.

KC Daubney said the consideration of application for leave involved exercise of judicial discretion and that was the aspect of judicial discretion which had been down played.

He said the respondent (Naidu) did not have anything to prove or deny.

He said the whole point of the Setting-Aside Summons filed was to see the AG’s allegations were of proper basis.

He said Naidu had the right to remain silent and cross-examine the AG.

KC Daubney said in Constitutional theory, the A-G should not have any personal interest in persuading this case and that Naidu had everything to lose.

He said this proceeding was of most serious of judicial functions.

In response, the counsel for the A-G, Gul Fatima said both the applications seeking Leave to Appeal were filed in breach of Rule 16 of the Court of Appeal Rules as they were filed out of time.

She said both of the applications were therefore an abuse of process. She submitted that the court should strike out both of the applications at this stage to avoid any further costs.

She said the respondent had missed the timeline to seek leave and file a proper Notice of Appeal.

Ms Fatima said the issue of the word “mention” in the cause list was one of the grounds in the Leave to Appeal application.

She said every lawyer was aware of the fact that they would always rely on the returnable dates issued by the Registry on their own filings, and that in Naidu’s case, he clearly sought a hearing date.

On the issue of the respondent’s counsel not be given a chance to give his oral submissions, the counsel for the AG pointed out from Affidavits filed on the Respondent’s behalf that Mr Apted had spoken for five and half pages of the transcript recording the proceedings.

She said the respondent did not suffer any prejudice in filing written submissions to supplement oral arguments made on July 26, 2022.

She said there had been no violation to the respondent’s right of counsel of choice.

She said the respondent was required to engage a counsel and be prepared for the Hearing on 26 July 2022. He could not deny the fact that he was not denied of counsel of choice.

She said Naidu was desperately attempting to politicise these proceedings as his grounds in respect of the setting aside dealt with his so called political aspirations.

She said the grounds which were captured in the Summons referred to Naidu’s affiliation with 6the National Federation Party. She maintained that these proceedings had absolutely nothing to do with politics and that Naidu needed to speak to the offending post.

She said the respondent had made a mockery out of these proceedings and showed disregard to the court’s time, the High Court Rules and the Court of Appeal Rules.

She further said that while the setting aside application was premised on the Respondent’s argument that the Applicant had not brought these proceedings in his official capacity and that he has a personal interest in the proceedings, Ronal Jasvindra Singh, a Partner in Munro Leys stated the exact opposite in his affidavit when discussing why the stay should be granted.

Ms Fatima said that Singh had included an authority from Naidu in his affidavit and was authorised to depose this Affidavit on behalf of Naidu

She said in holding this position in the Affidavit, both Naidu and Singh have confirmed that these proceedings were nothing but a sham to delay the substantive hearing.

She argued that this is not the first time Singh and other third parties had filed Affidavits in the proceedings.

She argued that the applications were deceptive and misleading and should be dismissed with costs.

The substantive matter has been fixed for hearing from November 10 to November 11.

Story by: ashna.kumar@fijisun.com.fj