Justice Pita Bulamainaivalu will deliver his ruling on the constitutional redress matter involving former SODELPA MP Niko Nawaikula for a strike-out on July 18.
Appearing before the High Court in Suva on Wednesday, Mr Nawaikula sought a constitutional redress involving a magistrate.
He claimed the magistrate was summoned by the late chief justice, Kamal Kumar, to transfer the matter to the High Court, which Mr Nawaikula (appellant) claimed was not fair.
The respondent from the Attorney General’s office, Ofa Solimailagi, said the strikeout application was made pursuant to rule 18 of the High Court rules, which allows an application to be dismissed.
Ms Solimailagi said section 44(4) of the Fijian Constitution states: “The High Court may exercise its discretion not to grant relief in relation to an application or referral made under this section if it considers that an adequate alternative remedy is available to the person concerned.”
The relief sought refers to a criminal matter which Mr Nawaikula was convicted of and sentenced accordingly.
The court heard Mr Nawaikula had filed an application to appeal against the transfer of the matter by the trial magistrate and appeal over the substantive matter, for which he was previously charged, to be heard before the Court of Appeal.
Ms Solimailagi made it known that a remedy was available in this case, which was for the matter to be handled by the Court of Appeal as a decision made in this court to favour the application would be of “bad precedent”.
She said the remedy was to follow the normal court process through the Court of Appeal, but she also mentioned the appellant’s intention of seeking compensation from this civil court since the Appeal Court was within a criminal jurisdiction.
Ms Solimailagi made it clear a constitutional redress could be applied when any human right is likely to be contravened but would be dismissed if the allegations were fictitious in nature.
FICAC lawyer Joseph Works said the appellant tried to consolidate the appeal but, according to him, the submissions and grounds submitted seemed to be overlapping and repetitive.
Mr Nawaikula said Justice Thushara refused the appeal against the decision of the magistrate and said: “I don’t have jurisdiction”.
Justice Bulamainaivalu informed the appellant the High Court has a wider jurisdiction, therefore, can take on indictable and “summary in nature” matters from the magistrate’s court.
When asked if an application of biasness was made regarding the magistrate, Mr Nawaikula said no because at the time it was “unknown” to him.
Justice Bulamainavalu said that according to the law, the application must be made in the first instance and cannot be raised subsequently.
He said there was duplicity in applications since Mr Nawaikula was currently pursuing in an appeal court and civil court.
“Constitutional redress is the last resort,” Justice Bulamainaivalu said.
