The Court of Appeal Civil jurisdiction will deliver its decision tomorrow in the appeal case filed by lawyer Richard Naidu.

Naidu, who is facing committal proceedings, has filed Summons seeking Leave to Appeal from the High Court to the Court of Appeal Civil jurisdiction in respect of the Civil High Court decisions dated September 1 and September 2.

These decisions were delivered by the Civil High Court in Naidu’s applications seeking orders to set aside the ex parte order to launch committal proceedings and to cross-examine the Attorney-General.

The matter was called before Judge Justice Almeida Guneratne in the Fiji Court of Appeal yesterday for a hearing.

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 alleging that Naidu has ridiculed the Judiciary in a Facebook post.

Naidu has also applied for a stay of the substantive committal hearing pending determination of his applications.

Naidu’s Lawyer

In the hearing, Naidu’s lawyer Jon Apted told the court that the decision of September 1 affected his client’s substantive constitutional and common law right which was guaranteed under Section 15 (4) of the Fijian Constitution.

He said the learned Judge, by insisting that the applications be dealt with by way of written submissions and refusing their application for oral hearing and which Naidu’s right to counsel of choice could attend, breached that right.

He said there were various findings in the decision that breached the right to silence for Naidu.

He added that there was a right to silence at Common Law, however under the Fijian Constitution Section 14 (2)(j) the Common Law right was expanded.

Mr Apted said there was also a question on right to challenge the evidence presented against by way of cross examination.

He said every person charged had the right to call witnesses and present evidence and to challenge evidence presented against it which Naidu was seeking to exercise against the person who swore the affidavit in support of the committal.

He said in the application of refusing to set aside application, the learned Judge made various decisions and Naidu had exercised his right to silence.

He said Naidu did not sign any affidavits.

He said the learned Judge made a number of rulings in respect of the affidavit, with respect, had no basis.

He said the basis for distinguishing it was not correct which affected Naidu’s substantive rights.

He said the Fijian Constitution had a very strict separation of powers and judicial powers were vested exclusively and solely in the courts.

He said respondent submit that the A-G had no, in his official capacity; they alleged that the AG was personally motivated.

He said in his official capacity as the A-G, he would not be personally affected by the stay application.

He said Naidu wanted a Kings Counsel to represent him at the oral hearing of cross examining the A-G, however, the application was refused.

Mr Apted said his client pleaded not guilty and the conduct was just an allegation.

He said there was no real contempt in his client’s conduct but this proceeding was activated only by the applicant and the respondent’s political rivalry.

A-G’s Lawyer

Counsel for the A-G, Gul Fatima in her response to Mr Apted’s submissions submitted that Naidu had failed to respond to the allegation of contempt.

She explained that there were three classifications of contempt which were usually brought before the Courts.

She explained that these were contempt arising out of breach of Court orders or disobeying Court orders, contempt in the face of the Court and contempt where there is an allegation of scandalising the bench.

She submitted that Mr Apted referred to Naidu as an accused person when in fact Naidu was a proposed contemnor for the purposes of committal proceedings.

She added that Mr Apted’s submissions in relation to the Setting Aside and Cross-Examination would serve no purpose as at no time had Naidu addressed the post itself.

She said in both the applications, Naidu had put forward his political aspirations and that these were not relevant to the offending material or the contempt proceedings.

She submitted that if Naidu truly felt that his liberty was at stake and that these proceedings were serious, he needed to focus on his defence, and not his affiliation with any political party or the conduct of the applicant.

Ms Fatima said this was the allegation before the court where the ridicule and scandal for the Bench arises out of and that was why these proceedings had been filed.

She said on July 26, 2022 when parties came to Court in respect of Naidu’s application for Setting Aside, the parties were aware that the matter would be heard on that day.

She said simply because the case was listed for mention, it did not mean that counsel do not come prepared.

She also said that where an applicant seeks a hearing date on his very Summons, and these Summons are filed in the Registry, counsel must be prepared to conduct the hearing on the returnable date.

She submitted that on July 26, 2022, Mr Apted responded to his submissions, took directions for filing of written submissions, asked his Lordship if he could get 10 days as opposed to seven days to file his submissions, and only then notified the Court that he was not Naidu’s counsel of choice.

Ms Fatima said Mr Apted had at no time during the five and a half pages of his submissions, as recorded in the transcript, advised his Lordship that he was not chosen by Naidu to conduct the hearing.

She urged the Court not to consider this as an arguable ground of appeal for the purposes of Naidu’s application as the facts speak for themselves.

She also stated that Naidu had continued to file third-party affidavits but claimed that he was exercising his right to silence.

She said Naidu had abused this right by offering evidence by deponents who did not have personal knowledge of the matters contained in their Affidavits.

She added that Lorraine Bhan who had sworn an affidavit and had deposed to an allegation of animus on the part of the A-G could not have possibly had personal knowledge of this matter.

She said when his Lordship had in his Decision stated that he placed no weight on the affidavits of Ms Bhan and Ms Qereqeretabua, Naidu filed their affidavits once again in response to the affidavit of the A-G.

She said at no time had any of the affidavits responded to the allegation of contempt itself.

Ms Fatima said the question now was what purpose would the applications for setting aside and cross-examination serve in a matter which deals with scandalising the bench. She submitted that the post would not go away.

She submitted that Mr Apted had on various occasions from the bar table and in his submissions submitted that the post was “it was nothing but a light-hearted quip”.

She said this statement itself showed that Naidu has taken ownership of the post and that Naidu was now bound by this defence.

She said when it came to the grant of leave for ex parte application; the Judge looked at the affidavit filed in support of a motion and the statement which were the three things which Order 52 of the High Court Rules required.

She said from the outset Naidu and Mr Apted had done little to address the post itself and had brought in irrelevant material to Court by way of third party affidavits.

She questioned why Naidu had not addressed his conduct if indeed he felt that these proceedings are serious and affect his liberty and reputation.

She submitted that Naidu’s constitutional and substantive rights remained protected and that he had been invited by the bench to file affidavits, file applications which he wished to make, and also had the right to provide any oral evidence that he wished to at the time of the hearing.

She also submitted that this was not a matter which affected other litigants or proposed contemnors as the issues relating to this case were subject specific and conduct specific.

She said other lawyers may actually come to Court prepared for Hearings and stick to the issues before the Court.

She submitted that a stay would be injurious to the reputation of the bench given that this matter concerns contempt where an allegation of scandalising the bench is made, and that hearing in the substantive committal proceedings should proceed without delay.

At the end of the Hearing, Mr Apted asked the Judge to deliver his Decision before the substantive committal hearing which is scheduled to start this Thursday.

Story by: ashna.kumar@fijisun.com.fj