THE Office of the Director of Public Prosecutions yesterday successfully opposed the bail application of a soldier on assault charges on the grounds he was evading arrest by being at military barracks where police were refused entry.

However, Pita Matairavula's lawyer Mehboob Raza said reports that his client was on the run was not true.

Mr Matairavula, one of the five accused in the alleged assault of Iowane Benedito, appeared before Magistrate Charles Ratakele at the Nasinu Magistrates Court.

State lawyer and Assistant Director of Public Prosecution Michael Delaney said there was a risk of Matairavula not complying with bail.

In his objection to bail, Mr Delaney said police had gone to Matairavula's residence following a directive from the Commissioner of Police and senior officers to charge the five accused persons. Officers were told by his wife that he had gone to the shop to buy bread but he did not return.

Mr Delaney claimed that Matairavula was evading arrest since October 21 and was at the military barracks where police officers were denied entry.

He added that police took a sensible position and went to the Lautoka High Court on October 28 where the accused was facing a similar charge.

Police were told Matairavula would be brought to Suva to face his charges, which did not happen. Mr Delaney continued that Matairavula had waited for his co-accused persons to be granted bail and then he surrendered himself to the police.

Officer in charge of the investigations Inspector Semi Senitiri took the witness stand and informed the court of their attempts to arrest Matairavula.

Mr Raza asked the court to grant bail to Matairavula on the grounds that was married with two children, a class one warrant officer, had no previous convictions and has his own property in Kinoya.

The defence lawyer also told the court that a media report saying his client had ammunition and was on the run from police was not entirely true.

He added there was no attempt by police to arrest Mataraivula who had voluntarily surrendered himself to police.

Matairavula has been remanded in custody to await Magistrate Ratakele's decision on his bail application on November 13. A video of five persons assaulting Benedito went viral on social networks two years ago, which prompted police investigations. Source: Fiji Times

PRIME Minister Voreqe Bainimarama has rejected a request from the Monasavu Landowners Association (MLA) to take over the operations at the Monasavu dam in Naitasiri. While speaking at a talanoa session at the Wainisavulevu Weir raising ceremony in Monasavu, he said the Fiji Electricity Authority was suitable for the role.

Mr Bainimarama said it was not an easy task to take over from FEA, especially as they had been doing it for a long time. He told the landowners they should not be influenced by outside forces when making important decisions. The Prime Minister also urged the landowners to engage in discussions with Government to sort out issues that concerned them. He said he hoped that any discussion with Government would not lead to any roadblocks as gone were the days for that.

MLA secretary Samuela Konataci said they could carry out the work by FEA. "We know that we can find a company from overseas that can take over the job and manage the work that's been carried out by FEA," he said. "We are the rightful owners of this land and there's been a lot of issues that we've faced with FEA and we think that we can do the work that they are doing." In a letter obtained by this newspaper addressed to the Prime Minister on October 23, 2015, the Monasavu Landowners Association had hopes to take over from FEA. The letter signed by Mr Konataci revealed that landowners were not consulted about the State's plans to sell some of its assets to foreign companies including the FEA. The letter states that the MLA has been in negotiations with Fijian Holdings Ltd and three local companies and in their meetings held this year, they proposed and agreed to the takeover and to buy FEA. Source: Fiji Times

Landowners Spokesperson Samuela Konataci says FEA has been recording major profits in the past thirty years and yet the landowners are still getting the same royalty payment of two cents per unit. FEA Board Chairman Nizam-ud Dean told the landowners, the review of the lease royalties is done every ten years. The last review was done in 2013 and next one will be in 2023. Source: FBC News

Fijileaks: Edited version

Naqa v Fiji Electricity Authority [2005] FJHC 401; HBC0237.2002 (31 October 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


CIVIL ACTION NO.: HBC0237 OF 2002

BETWEEN:

RATU SOLOMONE NAQA & OTHERS
Plaintiff

AND:

THE FIJI ELECTRICITY AUTHORITY
Defendant

Counsel: Mr. R. Burbidge QC, Mr. G. Radburn & Mr. P. Wood – for Plaintiff
Mr. R. Fardell QC & Mr. Barnes – for Defendant

Date of Hearing: 26th – 29th September, 2005
Date of Judgment: 31st October, 2005

JUDGMENT

Introduction and Background

The Fiji Electricity Authority (“FEA”) commissioned its Monasavu Hydro Project in 1983. The land on which the infrastructure is built was acquired by outright purchase in 1978. Many Monasavu folk saw little of this money. This aggravated their genuine sense of loss and bewilderment as their traditional land was submerged for the betterment of the country.

The Monasavu water catchment area, though identified as such, was not acquired leased or submerged. In fact, the defendant Authority had written to the Senior Valuer of Ministry of Lands and Mineral Resources in 1978, before the dam acquisition and confirmed that it did not wish to control the catchment area at all, but wished to have a one chain wide strip of land, beyond the maximum flood level around the perimeter of the lake. As far as the FEA were concerned the landowners could use the catchment area for traditional purposes, agriculture, grazing and logging. The use of the waters in any tributaries for village supply was to remain with the people.

The total area of the catchment is 25,075 acres. It contains Native Lands, Crown Schedules A and B, Forestry Reserve as well as Native Reserve. It would appear that agencies other than FEA subsequently prohibited the landowners from using the catchment and in particular logging trees. The landowners perceived this as depriving them of resources and land use; this created great offence. The restriction also reinforced the idea of demanding compensation for the “use” of the catchment area. This became a convenient banner for spoilers and profiteers who for their own purposes agitated the wounded feelings of these poor people.

Although the waters in all tributaries belong to the State the landowners perception assisted by some questionable legal advice was that as the waters used for hydro generation were collected over the catchment area and as they believed they had lost the use of the catchment their Mataqali should be compensated. The gravity of this grievance was recognized by the Government very early on, but nothing was done to settle it.

Matters came to a head in 1998 when frustrated landowners staged a takeover of the Wailoa Power Station, placed armed roadblocks around the complex and burnt down the administration block. The police and the military were based at the site to maintain order. Instigators were arrested and charged.

Monasavu was vital to the nations sustainable development. It provided 80% of Fiji’s power. The spoilers and profiteers well knew the hydro plant had to run unhindered and efficiently. Pursuing their own ends they continued to push these frustrated people to demand greater payment for the catchment use.

So it was that a taskforce, engaged by the Prime Minister [Laisenia Qarase], made its report on the valuation of the compensation claim and suggested leasing the catchment area to the FEA. Cabinet approved a payment without poundage to the NLTB. The NLTB was then prepared to issue a lease offer to the defendant. The compensation offer comprised:

99 year lease rent paid up front $10,010,176.00
Timber premiums compensation $1,406,188.38
Timber royalty $3,225,702.69

This culminated in a meeting held at the Tradewinds Convention Centre where settlement was agreed by most landowners on these terms. However, some Mataqalis did not agree and walked out of the meeting.

The dissident landowners, who did not agree to the Tradewinds Accord, were gathered up by a lawyer, Mr. Fa, who on their behalf for a modest deposit and a retainer of 10% then issued a High Court writ, citing the Attorney-General, the NLTB and FEA as defendants, claiming $38m (Civil Action 576 of 1998 after consolidation of Action 575 of 1998). Further, an injunction was placed on the NLTB from proceeding with the lease offer. As a result the grievance was not settled most Mataqali joined the Fa proceedings and agitation increased over the claim.

Following the events of May 19th, 2000, a group of landowners and rebels captured the Monasavu complex at gunpoint and shut down the plant. This resulted in a massive shortfall of generation capacity for FEA, and a period of rolling power cuts took place. The blackouts assisted lawlessness. Diesel generation over the use of water to make power was costing the FEA and the nation a million dollars a week. The rolling blackouts, insecurity and high diesel generation costs took their toll on both the FEA and the nation’s economy.

The pressure on the FEA to fix this problem was compounded by the historic sense of grievance deeply felt by the Monasavu Mataqali, the uncertainty of the Speight coup outcomes and the personal safety of those most closely involved in seeking a return of the facility.

In August 2000, a meeting was called by the FEA at the Pacific Harbour Centra Hotel, Deuba. This meeting was convened by the FEA to regain control of the Monasavu Hydro complex and secure the safe return of all arms and ammunition on site to the military. The team appointed to this task had few riding instructions. They were under considerable pressure to ‘fix’ the problem.

The meeting produced a Joint Statement of Understanding (“JSU”) that said for a payment of $52.8m the Monasavu Mataqali would settle their grievances for all time and compromise Case 576 on terms. In return the Monasavu people in occupation of the dam would surrender the facilities and all the Mataqali would support the FEA in its vital role of power generation. There were some reservations in the Joint Statement. The document is attached as Appendix A.

Thereafter the defendant changed its mind on acquiring a lease of the catchment and sought a variation of the ‘JSU’. The parties continued to talk about that issue. A summons for compromise on terms containing the defendants varied offer to settle was filed in June of 2001. It was rejected by the plaintiffs. No order was made on the summons. Instead, the plaintiffs commenced these further proceedings, separate from Case 576 claiming a binding settlement was reached at Deuba or alternatively later. The original proceedings in Case 576 were stayed by my brother Justice Byrne pending a decision in this case.

In these separate but related proceedings the plaintiffs claim a compromise to the original Case 576 on terms was agreed at Deuba or alternatively later. They seek specific performance of that agreement and damages for loss of money use in the meantime.

The defendant replies that its agents had no authority to settle the landowners grievances on Case 576. Even if they had authority, the FEA further responds by pleading their was no intention to be immediately bound to the terms contained in the Joint Statement of Understanding. It is claimed the ‘JSU’ was no more than a significant progress report on settlement. It does not contain all the essential terms of the contract. As for the later formation of an agreement the defendant denies their subsequent offer of compromise was accepted before it was withdrawn.

The following issues fall for my determination:

(i) Was an Agreement reached at Deuba on 11th August 2000 or alternatively later to compromise the claims described in Civil Action 576 and thereby settle the Monasavu grievances for all time.
(ii) If an Agreement was reached at Deuba whether the defendants Agents had the requisite authority to compromise the claims described in Civil Action 576 and thereby settle the Monasavu grievances for all time.

Formation of Contract

Intention to be bound

It goes without saying that there is no agreement if the parties did not intend to be bound. It is sometimes a question of considerable difficulty whether the evidence does establish such an intention. That can be particularly so where the parties have signed a preliminary document, for example a heads of agreement, it being anticipated that a more formal and detailed document will be drawn up in due course. The preliminary agreement, however brief it is, can be binding if it was intended to be. (Professor Burrows Canterbury University Update on Contracts NZLS 2003).

The question of whether a heads of agreement constituted a binding contract arose in the case of Fletcher Challenge Energy Ltd v Electricity Corporation of New Zealand Ltd [2002] 2 NZLR 433. The parties agreed that the Court should be guided by this New Zealand Court of Appeal decision and its general statement of principle. I accept the relevance of the case subject to the one reservation that Fletcher was about a complex long term commercial oil and gas supply contract and not the settlement by compromise on terms of a case essentially over native land grievances.

In my view the bargaining process and resultant contracts are different between the two types of agreement.

The Background to Deuba

It is common ground that the “FEA” acknowledged the long standing Monasavu landowners grievance and their demands for compensation. I find it relevant that as early as 1998 the FEA Board participated in a Government organized scheme to pay over some $14m. This was the sum fixed by the Tradewinds Accord. Indeed the FEA was in the process of considering a lease of the catchment area provided by the NLTB when that accord was destroyed by dissident landowners filing the original proceedings seeking a far greater sum.

The Deuba meeting took place in the immediate background of the May 2000 coup and the uncertainty surrounding its outcome. It is an irresistible inference that some plaintiff landowners assisted in the takeover and partial destruction of the  hydro dam  complex in conjunction with Speight rebels.

What is clear is that the cost to the nation of having the hydro electric facility off line was unacceptable. A loss of $1m a week caused by the need to make power under diesel generation if unchecked would effectively bankrupt the FEA and ruin the nation. (See Deans Board Report Ex.1 tab 7). Something had to be done quickly and if that involved paying more than the $14m fixed by the Tradewinds Accord then the FEA would have to absorb that comparably modest cost.

I find the immediate need to recover the facility and safely see FEA employees back in control of the hydro plant after the surrender of arms and ammunition by the rebels drove the FEA to its meeting at Deuba. The expectations of the meeting for both parties were different but I accept the evidence of the defendants witnesses and their explanation for the involvement of the Qaranivalu and the advertising of the meeting (Volavola para 21). The fact that the first item on the agenda after the traditional ceremonies had been completed was a demand for the return of the facility and surrender of weapons and ammunition emphasizes the importance of this issue in the minds of the FEA negotiating team.

I find the FEA negotiating team otherwise had few riding instructions. Their mandate was to secure the return of the dam. It is clear that to achieve their objective they would have to discuss settlement of landowner grievances and a compromise of Case 576. Kasa Saubulinayau included those in his agenda (332/9). They must have known the cost of diesel generation over hydro power and so had a sense of how valuable a cash settlement would be over paying ongoing fuel costs.

I further find that while there is no direct evidence that the FEA oversaw or approved the offer made by Kasa Saubulinayau prior to the 11th of August 2000 it is a fair inference that FEA knew that to secure the return of the dam they would have to consider a compromise of the original proceedings thereby settling the peoples grievance. The claims subsequently made by the CEO Mr. Dean that he knew nothing of the grievance settlement discussion at Deuba is unbelievable. I found his evasive answers in cross- examination unhelpful.

The amended writ (28 June, 2000) sought various declarations and included a compensation claim for $52,423,032.60. This claim was based on causes of action loosely pleaded as breaches of constitutional rights, unlawful occupation of the plaintiff’s land and trespass. The plaintiffs sought compensation from the defendants for the use of their land as a water catchment area for the previous 15 years (since 1982). The figures claimed in those proceedings were allegedly based on a study commissioned by the plaintiffs that calculated compensation $2,356.64 per acre. The writ also sought various declarations that by inference seek to hobble the defendant with a future lease of the catchment.

An objective bystander would know that a compromise on terms would somehow have to settle payment of the sum claimed and settle the lease issue for the FEA once and for all. The FEA has at times for collateral reasons, such as durability of any long term settlement, been prepared to lease catchment. However, FEA’s concern that a lease of this or any other catchment was unnecessary is underscored in their statement of defence on Case 576. That defence was filed before the Deuba meeting.

I find the parties came to Deuba prepared to settle Case 576. Some of the evidence supporting this finding is:

• Mr. Kasa Saubulinayau was appointed by the Chairman of the FEA to form a negotiating team.
• The recruitment of the Qaranivalu.
• The drafting of an agenda including a third item which was compensation (Mr. Saubulinayau 332/9).
• The arrival at Deuba on the Friday of the defendants chief financial officer with comments on the construction of the offer of settlement.
• Discount calculations made with the assistance of Mr. Donlan (Ex.1 tab 10).
• The first offer of $10m and the subsequent counter offer of $52.8m.
• Telephone calls between the negotiating team at Deuba and their FEA masters.

Something must be said of the private negotiations conducted between the defendants representative Mr. Saubulinayau and Mr. Fa.

It must be remembered at this time Mr. Fa held an agreement of retainer with his plaintiff clients that would see him receive 10% of any settlement or court award. That he managed to secure a $5m deposit into his trust account upon the executing and filing of a Deed of Settlement is therefore understandable but not coincidental (evidence p.101).

This concession by the FEA negotiator underscores in my view the defendants intention to be bound not only to a payment of a fixed sum but a structured payment. It also says something of the breadth of mandate the FEA negotiators believed they had. Why else would the FEA negotiator ‘sweeten’ the deal by keeping a major portion of Mr. Fa’s retainer secure in his trust account. It also says something about the ostensible authority held out to the landowners and their lawyer.

The written offer by Mr. Saubulinayau, an oral counter offer by Mr. Fa and its acceptance sealed a bargain for the FEA, Mr. Fa and his clients. The essence of the bargain was recorded in the Joint Statement of Understanding. It is to that document I now turn (Ex.1 vol.1 tab 11 of appendix).

The ‘JSU’

The introductory statement makes it clear that the understanding deals with the Monasavu landowners claims represented in High Court Action 576/98.

It was recorded that an agreement would be drafted (by inference for presentation to court) that would firstly: bring an “end to the dispute;” that is the wider sense of grievance held by the Monasavu landowners and the FEA’s resistance to a lease; and secondly: “discontinue Case 576” as then pleaded. That includes the claim for damages, the declarations sought and the future use of the land. The JSU commits the parties to include in that agreement the subsequent “principle features”.

Paragraph 1 sets the price for putting an end to the dispute and the discontinuance of Case 576. It was $52.8m. It leaves open the issue of equity participation by the landowners. Unlike Fletcher this was an open issue to be pursued in good faith as opposed to a term marked not agreed.

Paragraph 2 secures for the FEA its long established principle in relation to Monasavu and any other generation project that there was no requirement for it to lease any catchment area. The inclusion of this principle was consistent with the FEA’s particular defence and standing on this issue generally.

Paragraph 3 is I find a collateral agreement concerning the Wainisavulevu Water Catchment Area. It is a good faith sweetener for the FEA but not an essential term.

Paragraph 4 again emphasizes that the FEA is paying the $52.8m to settle the court action. That is all the aspects of Case 576. The first payment is to the plaintiffs negotiator Mr. Fa. It is described as a goodwill payment into his trust account in the sum of $5m. That payment was to act as a trigger for the landowners to file their notice of discontinuance. It was due to be paid on the execution of a Deed of Settlement.

The fact that the agreement then provides for additional future payments indicates an understanding by the FEA negotiators of the breadth of their mandate. It must be remembered that the defendants chief financial officer prepared the payment schedule. It also portrays the negotiators as having the authority to conclude arrangements over not only the amount to settle but also the method of payment.

Paragraph 4 parks the issue of indexation and an equity scheme. These are open not closed issues as they are subject to variation or discontinuance. Clause 4 makes it clear that either party can resile from the payment method not the payment nor the settlement of claims or compromise of Case 576.

Paragraph 5 specifies a good faith gesture from the plaintiffs landowners.

Paragraph 6 records that the plaintiffs will accept the payment of the $52.8m in “full and final settlement of all claims” against the FEA in respect of the Monasavu Electricity Scheme claims. Objectively I take that to mean not only those claims represented in High Court Action 576 of 1998 but any other present or future claim.

The issue of indexation was resolved in another way. Shortly after Deuba Mr. Fa withdrew the claim for indexation (Vol.1 tab 26 and Evidence p.113). The quantum and method of payment provided for in the Joint Statement of Understanding remained consistent throughout the documentary trail. I accept Mr. Fa’s evidence that Clause 4 was inserted to provide him with time to discuss the indexation issue. He did not see it as preventing settlement.

The informed bystander would know the Courts have a wide overriding power to approve or vary settlements. The Court may well consider a “stream” of payments or equity participation preferable to a one lump sum payment if only to protect ‘minor’ interests (under Order 80) and ensure that future generations of landowners gain the benefit of such a substantial settlement.

An important feature of the Joint Statement of Understanding is its preservation of the defendants position over catchment leases. At the outset the FEA’s defence to such claims was that they did not need a lease of the catchment area as the water running over the land and through the tributaries belonged to the State and did not create a use by the FEA of the catchment area (cf Amended Statement of Defence Case 576 paragraphs 2 - 4). Further their defence was that they had never restricted the landowners use of the catchment area. The FEA had been prepared to ‘trade’ on this issue for the sake of compromise but I find the defendants preference was to treat any settlement as a good will payment and not compensation (cf Minutes Day 2 Ex.1 vol.1 tab p.34). This was an important point of principal for the FEA on Monasavu and any other hydro scheme.

It was only after Deuba that the defendant sought a variation of the agreement to include a lease to improve the look of such a substantial goodwill payment in its books (Ex 1 vol 2 tabs 40 and 42). At Deuba the bystander would view Clause 2 as indicative of a ‘win’ for the FEA on this issue and a further indication of an intention to be bound to its terms.

I am satisfied by the subsequent conduct of the parties that they proceeded on the unaltered basis that the FEA would pay the sum of $52.8m over time. That sum and payment method were consistently recorded in correspondence throughout the following months. The FEA Legal Adviser and its CEO refer to an agreement reached at Deuba and a commitment to pay the $52.8m (Ext 1 tabs 16, 18 and 33). The FEA Board and Cabinet approved this payment. The figure of $52.8m and method of payment were also described in the summons to compromise.

After the meeting had been told about the JSU, the parties participated in a traditional Fijian ceremony denoting resolution of their grievances. The defendant points to that ceremony and submits that it is irrelevant as the case falls to be determined by conventional legal principles and not by reference to traditional ceremonies. This is not an occasion on which I need to explore the significant cultural impact of ceremonies on domestic law and the importance of making agreements in Fiji in a traditional way.

The fact is however that such ceremonies are an every day experience in the lives of our citizens and have real meaning. I accept the evidence of Mr. Volavola that these ceremonies set the seal on agreements with Fijians by having both parties embrace the arrangements by the sharing of “yaqona” the presentation of “tabua” and the offering of respect to the agreement, ancestry and parties involved by eloquent rhetoric.

Parliament has the power under the Constitution to make provision for the application of customary laws and for dispute resolution in accordance with traditional Fijian processes (Section 86 of the Constitution). The fact that Parliament has that power doesn’t yet elevate these ceremonies into a legal significance but it does underscore their importance in the objective assessment of whether or not Fijians intend to be bound to an agreement at any point in time.

I accept the sincerity and respect given by the parties to the agreement under this ceremony. I find it objectively points to an immediate intention to be bound.

An objective bystander would be taken to be informed of their importance in signifying an intention to be bound.

Finding

I find there was a bargain made at Deuba on the 11th of August that sought to compromise Case 576 on terms. This bargain was always going to be subject of court oversight. This is reflected in the subsequent actions of the defendants in filing a summons of “compromise on terms” for the courts approval (Ex.1 vol.3 tab 72). There therefore existed a mechanism under which any outstanding matters may have been resolved by the court exercising its residual discretion to protect the interests of children. I am confident that having found an agreement as described there is enough in the Joint Statement of Understanding to render it enforceable. Indeed enough for the Court to pro-actively assign meaning to the terms to be agreed under its wide powers to protect minor interests and ensure durability of any settlement.

Despite my finding that a bargain was reached to compromise Case 576 on the 11th of August 2000 at Deuba the question remains whether the FEA’s agents had the power to commit to such a settlement.

Ostensible Authority

The defendant Fiji Electricity Authority is a body corporate established under the Electricity Act (Cap. 180) Laws of Fiji. A good starting point to assess the authority of the FEA negotiators is that act. Under Section 11A the Authority may appoint officers and servants to carry out the provisions of the act. The general functions of the Authority are detailed in Section 13 and include the ability to acquire any property, construct any generating station and carry on any other activity that appears advantageous or convenient to it in connection with the performance of its prime duties. The authority of an FEA servant or officer is derived directly from statute by way of appointment which may include appointment by ratification.

A statutory corporation is a legal fiction. Its existence capacities and activities are only such as the law attributes to it. The acts and omissions attributed to a corporate body are the acts and omissions of natural persons. A corporation is bound by an act done when an officer who does it purports thereby to bind the corporation and that person is authorized to do so (directly or ostensibly) or the doing of the act is subsequently ratified.

The material enquiry calls for identification of the particular act, the person who did it and the authority – actual or ostensible – for that person to bind the corporation by the doing of that act.

I accept the submissions of the plaintiffs that there is considerable evidence to support both actual and ostensible authority:

• The Act contemplates that officers will be appointed from time to time to conduct the corporation’s business (Section 11(A)).
• The history of the Monasavu grievance and the involvement of the FEA in terms of settling it and the active participation of the Government in the matter.
• The process of convening the meeting and encouraging mataqalis participation.
• Mr. Saubulinayau at page 330 refers to his appointment by the Defendant’s Chairman to head a negotiating team “to take over full negotiation with the landowners”. He believed he had ample authority to draw up an agenda which included compensation.
• The frequent contact between the negotiators and the FEA during the course of the meeting. The presence of the defendants Accountant and his contribution.
• The pattern of bargaining including an initial written offer of $10m then the subsequent offer of $52.8m including payment terms.
• I accept Mr. Fa’s evidence as the pre Deuba conversations he had with Mr. Saubulinayau he had the power where he claimed to negotiate settlement.

For these reasons I find it was clear that the FEA officers and servants present at Deuba portrayed an ostensible authority to negotiate a compromise on terms of Case 576. I find the plaintiffs reasonably relied on that ostensible authority.

A more cynical view would only have the negotiators deliberately sent to the Deuba meeting without a clear mandate. They may have been sent only to secure the hydro plant at any cost ignorant of their instructions thus leaving the CEO and Board with deniability of any settlement reached on the wider issues. If that was so the defendants ‘willful blindness’ over mandate does not assist. It is still valid for a party to rely on an ostensible authority of opposing negotiators until such time as the authority portrayed is unequivocally revoked. Clear revocation of authority was not given until the Smith letter of 30th August (Ex. 1 tab 21) long after the Deuba meeting.

I quite separately find that the defendants Board ratified and adopted the actions of Mr. Saubulinayau at Deuba and the settlement he achieved (see Administrative Board Meeting 1/11/2000 Exhibit 1 tab 36 page 218.9 and again Ex.1 tab 44 page 261). That position was confirmed by Mr. Dean to the Director of Energy by two letters written in January 2001 (Exhibit 1 tab 45 page 266 and tab 46). Similar advise was given by Mr. Dean to the Ministry of Works and Energy by letter of the 2nd of March, 2001. Finally the settlement was published as part of the corporations Annual Report (Ex.1 tab 44).

I find there is no ambiguity or confusion about ratification of the amount agreed to settle Case 576 the figure of $52.8m remains constant in documents from the 11th of August throughout the documentary trail past the FEA Board on more than one occasion and the Cabinet up to the compromise proposed to the Court and after (Ex.1 tab 78).

The only real alteration during that time being the apparent about turn of the defendant on the issue of a lease for the catchment area. They decided it was embarrassing to their books to have such a large goodwill payment made without a corresponding asset to record against it (Ex. 1 tabs 40 and 42). The lease was otherwise unimportant to the FEA as they had always believed it was unnecessary and may set a dangerous precedent.

Good Faith

Fijian jurisprudence, and so its contract law, is underpinned by the Supreme Law of the Constitution. The constitutional compact described in Section 6 contains guarantees for the citizen that in return for accepting governance by the Republic a citizen’s rights, culture and custom will be preserved and advanced. It must be remembered that the majority of land in Fiji is protected for its Fijian owners by the creation of leasehold interests now supervised by a Native Land Trust Board.

In my view these constitutional provisions overlay negotiations and agreements about land in Fiji and particularly for our purposes land grievance disputes. They predicate that negotiations over such grievances and the subject land and its future use or alienation must proceed upon mutual confidence and good faith. Fairness, honesty and reasonableness all well recognized in the law must augment the formation, formulation and interpretation of such contracts.

The legal formalism that lead to the Fletcher decision is perhaps acceptable for a complex oil and gas agreement where astute commercial negotiators can be left alone to pursue their bargain. Not so, in my view, the parties to a land grievance when negotiating and forming their settlements. These arrangements often reflect lengthy past relationships and bind generations to come. The agreements reached must be durable otherwise they risk uncertainty that impacts not only on the parties but all citizens as uncertainty in a land grievance challenges the credibility of the constitutional compact.

Accordingly, in addition to the findings I have made and quite independent of them, I imply good faith into the negotiating process and the contract with the following effect.

Regarding ostensible authority I find that the FEA was obliged to tell the landowners and their lawyer in a way they could understand that their negotiators at the meeting did not have the power to decide. In the absence of such a clear and unequivocal statement I find the plaintiffs were entitled to accept the ostensible authority portrayed. Indeed the defendants own CEO after Deuba recognizes that the accord must proceed because expectations of settlement have been raised in the minds of the plaintiffs. (Ex.1 vol.2 tab 53).

I find that in good faith the landowners accepted the $52.8m in full settlement of all disputes for all time for all generations including the dispute portrayed in Case 576. I find they compromised their position by accepting there was no need for the FEA to lease catchment.

I find that in good faith the parties were prepared to discuss indexation but this was not an essential term as it could be varied or discontinued at either parties option. The fact that indexation was excluded subsequently underscores this finding.

I find that the parties in good faith formed an immediate intention to be bound to a settlement described by the Joint Statement of Understanding. In good faith they fixed a settlement sum. In good faith they agreed a payment schedule. Now in good faith they should both be held to that arrangement.

Conclusion and Orders

The plaintiffs wish to retain the benefit of their agreement compromising Action No. 576 of 1998. The defendant accepts the plaintiffs submission that a remedy of specific performance of any agreement is available and would be appropriate in this case.

The equitable remedy of specific performance is discretionary and will be granted only if the Court regards the making of such an order as one appropriate in the circumstances (Jones and Goodheart – Specific Performance (Butterworths London 1986). The courts will usually order specific performance where damages are an inadequate remedy (Lone Investments Corporation of Australasia vs Bonner [1970] NZLR 724 (PC). I have decided an order for specific performance will not lead to any prejudice to the plaintiff or defendant through unwanted performance and may be of benefit to the plaintiffs minors and unborn children. Any compromise on behalf of those persons requires the approval of the court under Order 80 Rule 8. I find (subject to the filing of a further plaintiffs memorandum) that I have enough information available to me to consider specific performance as opposed to damages as an appropriate safeguard for the interest of those minors.

I am satisfied that an order for the specific performance of the Deuba Accord will give effect to the particular arrangements that both parties deemed appropriate when they reached their agreement to compromise Case 576 to settle all of the Monasavu grievances. I am satisfied that Mr. Fa was prepared to waive indexation on his clients behalf and it is therefore an unnecessary burden on the defendants now to expect them to pay it.

I generally accept the terms of that agreement as described by plaintiffs counsel in closing submissions at page 7.

Damages

The plaintiffs seek damages for the delay in implementation of the relevant agreement. They submitted an actuarial report of Mr. David Keep, a chartered accountant. His report proceeded on three assumptions. The first as to the timing of payments. The plaintiffs conservatively submit that the first payment would have been made several months after the Deuba Accord and chose the 1st of May, 2001 as an appropriate starting date. I accept the plaintiffs reasoning in that regard. However, because of a subsequent finding that early date does not assist the plaintiffs damages claim.

Secondly, the plaintiffs assumed only part of the expense of the litigation would have been deducted from that initial payment leaving a balance available for investment. However, their assessment of the amount of those expenses have been wrongly calculated with the benefit of hindsight and consideration of Mr. Fa’s new fees agreement for hourly charging. Mr. Fa may latterly have altered his agreement with the plaintiff for the payment of his legal fees but at the relevant time I am satisfied that he would not be charging on an hourly basis and was looking to secure the bulk of his retainer fee by accepting payment of the sum of $5m into his trust account. I reject the plaintiffs argument that one can, with the benefit of hindsight, assume that a smaller amount would have become payable on an hourly charging basis.

I am fortified in that view as Mr. Fa’s subsequent conduct indicated quite an aggressive approach to protecting that payment. The least that can be said is that he wanted to ensure he had control of that $5m and therefore the only proper assumption is that it would not have been available for investment on behalf of the plaintiffs and on the balance of probabilities was to be used to secure Mr. Fa’s retainer.

Accordingly, in my mind that first sum should be excluded from the loss of use calculation.

This has the practical effect of making the first available payment to the plaintiffs as the $1,000,000.00 due on the 30th of September, 2002. It is from that date interest would have been earned on the accumulated investments over the period.

As for the quantum of that interest I prefer the reasoning used by the defendants expert Mr. Chung. I adopt the calculation method set out by him in Schedule 3 of his report. In particular I accept that there would have been entry fees charged to any investor and thereafter management fees for the ongoing care of the investment portfolio.

I also accept Mr. Chung’s conservative reasoning that the benefit of hindsight is not to be used as a yardstick to gauge the appropriate interest rate and that in fact the prudent investor would have been likely to spread his investment between the then available unit trusts in Fiji and I accept the average rates of interest and average entry fee charges he has calculated.

Concerning the assumption of lease. It was important for the FEA to establish the principle that they had no obligation to assume a lease of any catchment area. That was the bargain they struck. FEA subsequently changed its mind and wanted a lease. That was a proposed variation to the bargain they made. A lease was included in a summons for compromise but that was rejected by the plaintiffs.

As I have found that the contract was formed at Deuba I prefer to maintain the position established in paragraph 2 of the Joint Statement of Understanding that the FEA did not need to lease the catchment area comprising some 25,000 acres. Accordingly the lease payments included in the plaintiffs calculations are removed entirely from the calculated loss.

It naturally follows that the order for specific performance will include a declaration that the FEA is not obliged to lease the catchment area. If the FEA decides it requires the exclusive control of more catchment land it can be free to negotiate any such lease with the NLTB in the usual fashion.

I should further note that in coming to my ultimate ruling and orders I have taken into account Order 80 and its sub-rules. The settlement is substantial and must benefit the plaintiff Mataqalis for a considerable time. Evidence was lead that Mr. Fa has arranged for separate Mataqalis Trusts to be established. He has devised a method for the equitable sharing of any monetary award between the plaintiffs through these trusts.

The Court will ensure the durability of its award and protect minor interests so I will require the plaintiff to file a memorandum containing those details. In the interim all monies will be paid into Court.

(1) Judgment is entered for the plaintiff and subject to the following matters I order specific performance by the parties of the Deuba Joint Statement of Understanding (Ex.1 vol.1 tab 11).

(2) The defendant will pay into Court the sum of $52.8m in the following manner.

(3) The defendant will pay into Court the sum of $5m as a first payment by the 30th November, 2005. This sum may be disbursed by the Court to Mr. Fa after approval of the memorandum he will file.

(4) The defendant will pay the plaintiff the outstanding capital and interest due for payments from 2002 to 2005 calculated at appendix B.
That total sum of $4,404,751 to be paid in to Court by the 30th November, 2005.

The calculation uses the method described by Mr. Chung in his Schedule 3. In case my calculation is in error I reserve leave to the parties to apply to vary any technical deficiency by application to be made no later than the 4th of November, 2005. Thereafter the calculated figure will be deemed correct.

(5) The plaintiff will file and serve by the 11th of November, 2005 a memorandum detailing its intentions for the equitable distribution of the fund between the plaintiffs trusts; providing a full accounting of fees and disbursements and a general trust account reconciliation for the plaintiffs. That memorandum will include the following information:

1. Copies of trust deeds for each individual Mataqali.
2. Proposals for trust administration fees.
3. Proposals for division of any money received as a lump sum and a schedule of payments for the future.
4. A full fee and disbursement statement together with a balance statement including client trust account reconciliations.
5. In the interim all settlement proceeds will be received by the Court and held pending my final order giving practical effect to the disbursement of funds.

(6) I declare that the FEA has no obligation to lease any catchment area for the Monasavu hydro scheme.

(7) I declare that no indexation of future payments is required.

(8) Costs are reserved. An application is to be filed by the 11th of November, with replies by the 18th of November. There will be a hearing on costs on the 25th of November, 2005 at 9.30am.

Gerard Winter
JUDGE
At Suva
31st October, 2005

Raw Fiji News
Frank Bainimarama, Aiyazk Khaiyum and Teleni ordered tampering of judge Justice Gerard Winter’s car
By Victor Lal
November 14, 2011 at 3:50 am

Among the hundreds of leaked Wikileaks cables from the US Embassy in Fiji, there is one that makes very disturbing reading. It concerns an attempt by the illegal regime on the life of the outspoken former Fiji High Court judge, Justice Gerard Winter who had sent Francis Bulewa Kean, former navy commander and brother-in-law of dictator Frank Bainmarama to prison for killing salesman John Whippy at the Suva Yacht Club in December 2006.

According to the secret cable to Washington in October 2007, the US Ambassador to Fiji Larry Dinger informed his masters back home:  “Judge Winter, who holds New Zealand, Australian, and British citizenship, is due to end his term with the Fiji judiciary at the end of October.  Judge Jitoko is an ethnic-Fijian.  Both have issued rulings in recent months casting doubt on the legality of the coup, though neither has presided over a case directly addressing that issue.  Judge Winter’s car was tampered with recently, with two lug nuts removed from a wheel and steering fluid drained from its reservoir.  The recusal issue is to come before Judge Winter for hearing late this week.  Presumably the judge will not be amused.”

A year long investigation into the incident has led me to the DNA of none other than Esala Teleni, the dictator’s right-hand man and presently Fiji’s ambassador to China but who might be returning home to become Deputy Prime Minister and Minister for Defence. Those who tampered with Justice Winter’s car claim that they were acting on the orders of Teleni, Bainimarma and Aiyaz Sayed Kahiyum. A senior officer on the Military Council claims that Bainimarama after discussions with Khaiyum, who had been complaining about Justice Winter, gave Teleni the go-ahead to tamper with Judge Winter’s car.

As a matter of fact, Dinger’s cable was slightly off the mark. The senior military officer claims that in fact it was all but two wheel nuts off every wheel and the two nuts remaining were deliberately loosened so the individual wheels could “flop about” on the wheel hub. “It was a cold and callous attempt to murder Justice Winter,” said the military officer.

We may recall that shortly before Kean went on trial, Justice Winter had wanted the then Police Commissioner Teleni investigated for contempt of court or for attempting to pervert the course of justice. Justice Gerard Winter said in early October 2007 that he would submit a report to the Director of Public Prosecutions on his judgement as well as raise a suspected breach of section 131 or section 136 of the Penal Code. Section 131 deals with conspiracy to defeat justice while section 136 deals with offences relating to judicial proceedings.

Kean had applied that Justice Winter remove himself from hearing the case because the judge (Winter) did not support the military takeover and would therefore be biased. To support his claim, Kean had annexed a confidential letter written by Teleni to the Permanent Secretary for Justice and Solicitor General.

In the letter dated September 10 under the subject “Justice G. Winter and Justice F. Jitoko”, Teleni had written as follows: “This is to advise that adverse reports have been received against Justice Winter and Justice Jitoko for engaging in talks against the Republic of Fiji Military Forces (RFMF). Indications has been by these two judges of the pre-empt decision for the cases that may be associated to RFMF or its members. Therefore, it would be appreciated in the interest of justice that no cases related or associated with RFMF or its members be presided over by these two judges. There is a need to maintain the independence of the judiciary and not tainted with malice. For your appropriate consideration and action, please.”

Responding, Justice Winter had said the letter attributed taint and malice to his judgement and sought to have him barred from hearing certain cases. “The serious issue is whether the provision of this confidential letter to an accused by a policeman is contempt of court or an attempt to pervert the course of justice,” he said. Justice Winter said there was no evidence to show how Kean came into possession of the confidential letter. “If the Police Commissioner provided this confidential letter to his shipmate on the eve of Kean’s trial for murder, that action at best demonstrates ignorance of the Police Act and Regulations that prohibit such communication. It also demonstrates a total failure to recognise such a gross conflict of interest. The Police Commissioner’s action may also constitute a real risk to the authority and independence of the court.”

As we are aware, Kean lost his bid to remove Justice Winter, who went on to convict and sent the murderous Kean to prison for 18 months.

Justice Winter told Kean: “I accept you were provoked by Mr. Whippy’s language and actions. However, the provocation was in the circumstances minimal and the words came from a drunken man. You could have simply asked those around you to go inside and wait until Mr. Whippy had left. In this case it is not disputed that you punched the deceased three times putting him to the ground and then you kicked him. Considerable culpability falls on you for this offending. You deliberately punched and kicked the deceased rather than try some alternative method to send him on his way. Kicking this man when he was down demonstrates to me that this was an attack of considerable ferocity. You lost your temper. You resorted to violence. You had to be dragged away from your victim. I acknowledge that there are compelling mitigating circumstances. This death has caused you and your family great sadness and impacted on your life dramatically. I accept that you are extremely remorseful and in particular I note that you have tried to underscore that remorse with offers to help the deceased’s family. Your remorse is also emphasised by your plea. Mr. Kean, John Whippy’s life was precious and its value should not be underestimated. There must be exceptional circumstances before the court can suspend a term of imprisonment. I have searched for those circumstances in your case but can find none. An immediate prison sentence must be imposed. You are sentenced to eighteen (18) months in jail.”

The murderer Kean has been appointed by the Public Service Commission chairman and NBF debtor Josefa Serulagila, as the new permanent secretary for the Ministry of Transport, Public Utilities and Works.

Crime does pay in dictator’s Fiji, especially if you happen to be not only a convicted killer but also brother-in-law of dictator and treasonist Frank Bainimarama.

http://rawfijinews.wordpress.com/2011/11/14/frank-bainimarama-aiyazk-khaiyum-and-teleni-ordered-tampering-of-judge-justice-gerard-winters-car

Special cane payment for farmers

The Fiji Sugar Corporation has confirmed that cane farmers will receive a special cane payment next Monday.

Executive chair Abdul khan confirmed to FBC News that cane farmers will receive $2.80 per tonne for the last crushing season.

According to Khan this special cane payment is being arranged following the visit of the Sugar Minister and Prime Minister Voreqe Bainimarama who was in the Western division last week.

Khan says Bainimarama floated this idea to the FSC and the Sugar Cane Growers Council saying the current hardship and the drought in all cane built areas must be accounted for.

He says the special cane payment will lower the burden on cane farmers and allow them to celebrate Diwali. Source: FBC News

GOVERNMENT has today announced the divestment of 59 per cent of its shares in Fiji Ports Corporation Limited (FPCL) at a value of more than $100 million to a consortium - the Fiji National Provident Fund and Sri Lankan corporation Aitken Spence PLC.

The legal agreements were signed today by the Prime Minister Voreqe Bainimarama, and the consortium comprising representatives of FNPF and for the partial divestiture.

Mr Bainimarama said the transaction was a great step forward in the Government's asset sale divestment.

Government will maintain 41 per cent of the shares in FPCL, while FNPF will own 39 per cent and Aitken Spence 20 per cent.

Following the divestment, 80 per cent of the shares in FPCL will remain Fijian owned.

Under the agreements, Government will receive more than $100 million for 59 per cent of the shares in FPCL. The consortium of FNPF and Aitken Spence will pay $99,112,330, and the Government will also receive approximately $3.3 million from the sale of land to Fiji Roads Authority for the realignment of the road and bridge at Stinson Parade, Suva and $2.38 million from the repayment of an inter-company loan.

Minister for Public Enterprises Aiyaz Sayed-Khaiyum said the Government's objective for the divestiture is to secure the partnership of a long term investor in FPCL that would contribute to the development and growth of FPCL's asset base and continue the improvement of Fiji's sea ports, including their expansion, modernisation and development of specialised facilities.

As part of the agreements, FPCL will transfer all real estate to a government holding company, which in turn will lease the assets necessary for port operations back to FPCL. Ownership of all land interests will remain with the Fijian Government. Source: Fiji Times

Bainimarama's SOS call to China: "Join us in the Climate Fight"

PRIME Minister Voreqe Bainimarama has made an SOS call to one of the world's industrialised nations, China. Speaking at the 40th anniversary of the Fiji-China diplomatic relations, Mr Bainimarama said Fiji looked to China as one of the leaders in the climate change talks in Paris later this month.

"China understands that while we have negligible contributions as Pacific Islanders to the carbon emissions that are warming the planet, we are enduring most of the negative impact through rising seas and extreme weather events. And we ask China to side with us in this struggle as we try to persuade the industrialised nations to embrace drastic cuts in carbon emissions," Mr Bainimarama said.

He said everyone understood the grave fears of the Pacific people if their calls for change went unheeded.
The fear was on the survival of some nations and the loss of valuable coastal land in others.

"No nation can afford to be part of what I have called the coalition of the selfish. No nation can presume to put its economic interests before the wider interests of global citizens the world over.

"So I am asking China and the other industrial nations not only to consider the disastrous consequences of failing to do what is necessary in Paris to arrest carbon emissions."

He has called on industrialised nations to consider the positive consequences of embracing change and reconfigure their economies for a more sustainable energy future.

"To embrace the use of sustainable energy sources such as hydroelectric and solar power instead of fossil fuels and especially coal. For their own sakes, as much as for ours."

He said if the hard decisions were made now there would be a chance to save the Pacific and the planet rather than sacrificing interests in Paris.

"Because it is abundantly clear that the whole world cannot continue on its present course. We must choose a more sustainable energy future now.

"We must not let the opportunity that Paris presents escape us. We must not fail our people or our planet." Source: Fiji Times

Budget 2016 imposes 9% VAT on basic food items and prescription medicine that were previously not subject to VAT.

Denouncing the move as insensitive, Labour Leader Mahendra Chaudhry said it is a blow to the poor.

“The imposition of 9% VAT on basic food items will now force 45% of our people who live in or on the verge of poverty to pay more for food and medicine from their meager incomes,” he said.

“It is a highly insensitive move against the poor who spend a large part of their income on putting food on the table for their families.”

“Why was it not possible to reduce VAT without hitting food and medicine?” Mr Chaudhry asked. “After all, it is VAT/GST free in Australia, Canada, New Zealand, United States and the UK. Why can’t it be so in Fiji?”

VAT is a uniform tax paid by all, irrespective of their incomes and penalises the poor. This is why in 1999 the Labour Government removed VAT from basic food items to provide some relief to the poor from the imposition of a 10% VAT by the Rabuka Government.

“People must understand that reconfiguring the tax net is a ploy to rake in more revenue by shifting the burden to other sectors of the economy.

In the instant case, and in the Finance Minister’s own words there will be no loss of revenue, as it will be more than recovered by making basic food items more expensive.

Indeed, he has calculated that he will net more revenue by charging VAT on basic food but needed a ploy to sell it to the people by offering a reduction elsewhere.

The doubling of STT (Service Turnover Tax) from 5% to 10% was, no doubt, conceived as another revenue boosting measure.

A host of other revenue measures – increases in existing rates of fee, charges and levies will all add to business costs which will eventually be passed on to the consumers thus pushing up prices and fuelling inflation.

Here’s how basic food costs will go up:

Item Current price Jan 2016
$ (imposition of 9% VAT)
Flour/sharps 10.45 (10kg) 11.50
Cooking Oil (Soya Bean) 2.40 (750ml) 2.65
Powdered Milk (Rewa) 5.45 (450g) 6.00
Rice (long grain) 12.64 (10kg) 13.90
Tea Leaves 2.02 (200g) 2.22
Baby Milk 8.98 (350g) 9.90

THE DICTATORSHIP'S PROPAGANDA MACHINE, FIJI SUN, has reported a win-win situation definitely for every Fijian – Value Added Tax (VAT) will be reduced to 9% from January 1, 2016.  

The six per cent drop in VAT from 15% was announced by the illegal and corrupt Minister for Finance Khaiyum. This, says the FIJI SUN, basically means you will be paying less for more when shopping. This is the deception!

The sly and cunning Khaiyum has reduced VAT, on the one hand, but at the same time added VAT to basic food items that were once exempt, zero-rated, goods.  This means that the poor, who make up over 45% of the nation, will be paying more for basic food items because VAT now applies to the basic goods that include flour, powered milk, cooking oil, rice, kerosene and prescription medication!   

Remember that in 2012 the corrupt and lying Bainimarama dictatorship cut FNPF pension payments by up to 50%. This included meager monthly pensions of $50.  Now these $25 a month pension payments will have to accommodate an extra 9% VAT on all basic food items, just to survive!

The Fiji Sun claims that with this move, Government aims to create a progressive tax system, one which is fair to all as opposed to a select few.  What a load of rubbish!  This new tax system means that the poor will now be paying more to subsidize the rich.  Yes the rich will be earning far more from the reduced VAT!  This is just deceptive matter of "robbing peter to pay paul"!  There is nothing fair about it.

According to Khaiyum VAT exemption was supposed to protect those who were not well-off but it was also benefiting the rich who did not pay VAT on these items either.  So Khaiyum's answer is to add VAT that will affect the poor who make up 45% of the nation.  The well-off can afford it and often eat out in restaurants and clubs, and make far than $250 in a single day, or hour, as compared to $25 a month pensioner!...so how exactly will it affect the well-off?.....   

With a reduced VAT, claims Khaiyum, consumers would be able to save more than what used to be saved through the VAT-exempt items. Yeah Right! 

Khaiyum tells the Speaker of the House that his dictatorship will not ask anything of Fijian citizens that they do not demand of ourselves. This is rubbish!  Bainimarama and Khaiyum cut pensions by 50% then paid themselves multiple salaries amounting to millions! Khaiyum claims he and Bainimarama do not receive millions but stops anyone from auditing the accounts proper, to prove Khaiyum is telling the truth!  This means that Khaiyum can make falsely to fool the people and the stupid!

The people who assess, collect and record taxes and duties must be unquestionably honest, says Khaiyum.

BUT he and Bainimarama are anything but unquestionably honest!  They are liars, committed treason, corruption, sedition and rigged an election. So there is no chance of Bainimarama and Khaiyum ever being seen as or even considered as honest people!  

Any interesting point in the Budget is the allocation of $18 million to Fiji Airways, who, if you believe the propaganda, have made such unbelievable profits over the past years that they paid bonuses to their management and staff - all of which dramatically announced in the media.  

Click HERE to read more by FijiLeaks and click HERE to read more at C4.5. Source: TruthforFiji website

On 19 May 2000, Frank Bainimarama ordered his elite military forces, the CRW, into parliament with George Speight to overthrow the democratically elected government in a coup and hold them hostage. Ratu Epeli Nailatikau, was to join Speight in parliament and take over the running of government. 

The President Ratu Sir KKT Mara consulted his son Ratu Captain Tevita Mara, who advised him that the standard thing to do in such a situation was for the army to cordon off the entire parliament complex and not let anyone in or out.  Also, all communication into and out of the parliament complex was to be restricted.  The President then called on the acting head of the RFMF for advice, the advice the President received was to do nothing.   

The President disagreed and stood his ground against Speight and his supporters. Senior army officers also stood their ground, which stopped the bulk of the army from backing Speight and his supporters.  Bainimarama, however, on his return from Norway, told the senior officers that the RFMF was supporting Speight. Not all officers went along with it.  A senior Colonel also challenged Bainimarama’s decision in front of other officers, and Bainimarama backed down.  

Bainimarama then tried to build support from within the  lower ranks by telling the rest of the CRW boys that they could take leave and go and join their comrades at the parliament complex.  A number of them went because of the strong bond they shared as a unit, but they later realised that they had been tricked and were being used. Captain Steven (CRW), who had just returned from a training exercise, ordered his men not to go to the parliament complex.  His men followed his orders and did the right thing.

But a few army officers moved freely between the parliament complex and the army camp at Nabua - under orders from Bainimarama.  A number of them stated later that they were confused as to which side the army was supporting.  There was no clear leadership from the camp – and from the Commander Bainimarama.

Without key support from the bulk of the officers and the army the coup was doomed and Ratu Epeli Nailatikau was forced to back-down and abandon Speight.  Speight was left to his own devices to deal with the situation.  CRW soldiers who had gone into parliament under Bainimarama’s orders all said later that they were waiting for Ratu Epeli Nailatikau to join them. He never did.  Ratu Epeli’s wife, Adi Koila, was also being held hostage in parliament.

Days later Bainimarama, in his second coup in 2000, overthrew his Commander in Chief of the RFMF and President of Fiji, Ratu Sir KKT Mara and declared martial law and placed Mr Qarase at the head of the interim government.

The 2000 coup had failed so Bainimarama, while trying to appear innocent, had to find a way out for himself.  He chose to divert all blame on to his CRW men whom he had ordered into parliament. The CRW soldiers became Bainimarama's scapegoats.  Ratu Silatolu, in a letter he wrote from prison to Bainimarama, referred to the CRW as Bainimarama’s sacrificial lambs.

Bainimarama, had hid cowardly behind his CRW soldiers and then had them arrested, beaten and tortured by the unwitting army who were clueless as to Bainimarama’s involvement in the 2000 coup.  Col Tarakinikini stated in his affidavit that Bainimarma wanted it all – to rule Fiji. 

The CRW were then imprisoned while Bainimarama was hailed as Fiji's saviour. Bainimarama did not save Fiji in 2000.  He was behind the 2000 coup.

Now Ratu Epeli Nailatikau is President, albeit illegal, Ratu Epeli Ganilau was a Minister in the junta, and Bainimarama is ruling Fiji as dictator (and also running from the law for crimes including treason, murder, corruption, illegally removing the President of Fiji  and sedition).

Missing from the picture is the opportunistic, vindictive and evil megalomaniac Khaiyum, who now has control of Bainimarama’s strings. Khaiyum wormed his way into becoming Bainimarama’s puppet master and has the job of keeping Bainimarama out of prison and swimming in the spoils from their corruption.

The interesting thing is that Bainimarama made it a point to be out of the country before the start of the 2000 coup, just as Ratu Epeli Nailatikau had done before the 1987 coup.

Ratu Epeli had gone overseas during a time of unprecedented turmoil in Fiji, to receive a small naval boat donated by the Australians.  Bainimarama on the other hand lied to his Commander in Chief, the President of Fiji, saying that all was well in Fiji and there was nothing to worry about.  There was unrest in the country and the President told him so and also questioned Bainimarama's decision to travel. But Bainimarama insisted that all was well in Fiji -and then he left to attend a standard conference in Norway.  The rest is history. Source: TruthforFiji

New Caledonia's criminal court has sentenced a former president, Harold Martin, to two years in jail, of which one year is suspended, over the way he awarded a large contract to an associate.

The court found Martin guilty of favouritism over the allocation of a US$29-million contract to an associate, Jean-Marc Bruel.

Martin was the board chairman of the publicly owned OPT telecommunications company when he defied the board to seal the deal.

The court also deprived Martin of his civic rights for five years.

Bruel was given a three-year prison term plus an $80,000 fine and banned from running a business.

His company has been ordered to pay a $450,000 US dollar fine and to be dissolved.

The prosecutor argued for Martin to jailed for betraying his public mandate.

Last week, his defence requested an acquittal, saying if it doesn't happen now, it would on appeal or once the matter was taken to France's highest court.

Fijileaks: Edited Version

Lal v Patel [2015] FJHC 844; HBC318.2014 (3 November 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 318 of 2014

BETWEEN:

GIRDHA[R] LAL of 656 Kirkland Avenue, Vallejo, California 94592, United States, Accountant.
PLAINTIFF

AND:

NALIN PATEL  Chartered Accountant of Level 10 FNPF Place, 343 Victoria Parade.
FIRST DEFENDANT

AND:

NALIN PATEL  and PRADEEP PATEL as partners in the firm of G. Lal & Co, now trading under the franchise name BDO & Associates of Level 10 FNPF Place, 343 Victoria Parade, Suva.
SECOND DEFENDANT

BEFORE : Acting Master Vishwa Datt Sharma

COUNSEL : Mr. Anil J. Singh for the Plaintiff

Mr. John Apted for the Defendants

Date of Hearing : 10th August, 2015
Date of Ruling : 03rd November, 2015

RULING

1. INTRODUCTION

1. The First and Second Defendants filed two (2) separate Summons together with Affidavits In Support on 18th March, 2015 and sought for the following orders-
   • (i) That the Plaintiff do within fourteen (14) days give security for the First and Second Defendants’ costs to the satisfaction of the court on the grounds that the Plaintiff is ordinarily resident outside of the Jurisdiction and otherwise as appear in the affidavits of  Nalin Patel  and Pradeep Patel;
   • (ii) That in the meantime all proceedings herein other than the proceedings relating to the giving of such security be stayed; and
   • (iii) That the costs of this application be the Plaintiff’s costs in any event.
2. The applications were made pursuant to Order 23 r 1(a) of the High Court Rules, 1988 and the inherent jurisdiction of the court.
3. The Plaintiff filed an Affidavit in Opposition to both Defendants’ application.
4. The application was heard on 10th August, 2015.
5. Defendants Counsel furnished his written submissions to this court on 10th August 2015 and the Plaintiff’s Counsel filed his written submissions after the conclusion of the hearing on 04th September, 2015.

1. BACKGROUND TO THIS CASE

1. The Plaintiff commenced proceedings by a Writ of Summons and the Statement of Claim on 13th November, 2014.
2. In essence he is claiming relief going back to 01st January, 1998 and concerns events that occurred between 1990 and 1994.
3. Parties are not disputing that the Plaintiff was the founder of G. Lal & Co. a firm of that name now operates under franchise from the international accounting firm of BDO, as BDO.
4. The Plaintiff and the first defendant were the sole partners from about 30 June 1983.
5. The Plaintiff migrated to United States of America in 1991.
6. It is not in dispute that when the Plaintiff left Fiji in 1990, he took no active part in the affairs or operations of the accounting practice in which he had been a partner with the first defendant.
7. According to the Defendant, after the Plaintiff left in 1991, the first Defendant did not provide him with final settlement of accounts or purchase the Plaintiff’s interest as allegedly required by section 43 of the Partnership Act.
8. The Plaintiff states that he did not receive any profits of the practice from 01st January, 1991.
9. The Plaintiff’s first cause of action against both the first and second Defendants is that his exclusion from partnership and its rights constituted fraud.
10. The Plaintiff also alleges that the first and second Defendants wrongfully purported to represent him in dealings with the Commissioner of Inland Revenue which resulted in an unjustified tax liability.
11. The Plaintiff claims from the Defendants-
    • (a) Shares of the profits of the Firm of G Lal & Co from 01st January, 1991 till judgment together with 5%interest on the amount of shares of the partnership assets;
    • (b) The Plaintiff’s share in the profit of the partnership between 01st January, 1988 and 31st December, 1990;
    • (c) An order that the Defendants make a full disclosure of the financials of the partnership together with details of its assets and liabilities from 01st January, 1988 till 31st December, 1990 and from 01st January, 1991 till date of judgment;
    • (d) General Damages; and
    • (e) Costs.
12. The Defendants filed their respective Defences to the Plaintiff’s claim.

1. THE LAW

1. Security for costs of action, etc. (O.23, r.1)

1.-(1) Where, on the application of a defendant to an action or other proceeding in the High Court, it appears to the Court-

(a) that the plaintiff is ordinarily resident out of the jurisdiction, or

(b) that the plaintiff (not being a plaintiff who is suing in a representative capacity) is a nominal plaintiff who is suing for the benefit of some other person and that there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so, or

(c) subject to paragraph (2), that the plaintiff’s address is not stated in the writ or other originating process or is incorrectly stated therein, or
(d) that the plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of the litigation,

then if, having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the plaintiff to give such security for the defendant’s costs of the action or other proceeding as it thinks just.

(2) The court shall not require a plaintiff to give security by reason only of paragraph (1) (c) if he satisfies the Court that the failure to state his address or the mis-statement thereof was made innocently and without intention to deceive.

(3) The references in the foregoing paragraphs to a plaintiff and a defendant shall be construed as references to the person (howsoever described on the record) who is in the position of plaintiff or defendant, as the case may be, in the proceeding in question, including a proceeding on a counterclaim.

1. ANALYSIS and DETERMINATION

1. This is an application by the First and Second Defendants seeking separate orders for security for costs to be made against the Plaintiff on the ground that the Plaintiff is ordinarily resident out of the jurisdiction.
2. It is appropriate that the parties to this proceeding must understand what is meant by security for costs.
3. Security for costs is a common law legal concept of application only in costs jurisdictions, and is an order sought from a court in litigation. The general rule in costs jurisdiction is that "costs follow the event". In other words, the loser in legal proceedings must pay the legal costs of the successful party. Where a defendant has a reasonable apprehension that its legal costs will not be paid for by the Plaintiff if the defendant is successful, the defendant can apply to the court for an order that the plaintiff provide security for costs.
4. In the present case, the Plaintiff has admitted and confirmed in her Affidavit in Opposition that she is a Resident of United States of America. She has said nothing about owning any assets in Fiji Jurisdiction.
5. She opposes the application for security for costs but states if the court so orders, then she believes may not be able to find any more than $15,000.
6. The fundamental principle is the right of a litigant to pursue and enforce rights in the courts. The court must have a concern to achieve a balance between ensuring that adequate and fair protection is provided to the Defendant, and avoiding injustice to an impecunious Plaintiff by unnecessarily shutting it out or prejudicing it in the conduct of the proceedings. (Case of Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWLR 598 refers).
7. Therefore, it follows that the discretion lies with the Court to order the Plaintiff to give security for the Defendants’ costs of this action only after the Court has given due regards to all the circumstances of the case.
8. There is no hard and fast rule that security for cost should be ordered when the Plaintiff is ordinarily resident outside the jurisdiction. Hence it is not desirable to award security for cost solely on the ground of plaintiff being a resident in another jurisdiction. Court must consider other facts incidental to the proceedings.

On the outset, the First Defendant submits that a total costs are expected to amount more than $200,000 and for the Second Defendant with overseas Counsel in excess of $600,000.

Firstly, the Plaintiff has indicated in his affidavit and the Defendants have established that the Plaintiff is a Resident in the United States of America.

Secondly, there is no direct evidence from either party whether the Plaintiff has assets within Fiji Jurisdiction that may be utilized to recover costs if the Plaintiff loses the case.

Thirdly, the Plaintiff has appraised court with section 15(2) of the Constitution which has been taken into consideration. The Plaintiff stated that he would be deprived of his rights to litigation if court orders unrealistic amount of costs the Defendant is seeking.

In any event, the fundamental principle is the right of a litigant to pursue and enforce rights in the courts. The Plaintiff should not be shut out from prosecuting her case.

Upon the perusal of the Plaintiff’s Statement of Claim filed in court, at paragraph 15, he states that “the First and Second Defendants by their actions have fraudulently deprived the Plaintiff off his interest and share in the partnership of G Lal & Co from January 1991.” He further stated at paragraph 18 ‘whilst the Plaintiff was abroad the first and second Defendants without the knowledge and or assent of the Plaintiff, fraudulently purported to act as agent for the Plaintiff in dealing with the Fiji Revenue and Customs Authority, in relation to the personal tax affairs of the Plaintiff.’

The Defendants have pleaded Defence of Limitation under the Limitation Act Cap 35, Illegality, Estoppel, Laches, Delay and Acquiescence and make further objections to the Plaintiff’s Statement of Claim in terms of disclosing no reasonable cause of action, is frivolous or vexatious, may prejudice or delay fair trial in this action and is an abuse of the process of the court.

To this, the court is of the view that it should not delve itself prematurely into the merits of the case at this stage of the case, rather deal with the pending issue of the security for costs.

As I have earlier on stated herein above that the Plaintiff’s cause of action as it can be ascertained from the Statement of Claim that “the First and Second Defendants by their actions have fraudulently deprived the Plaintiff off his interest and share in the partnership of G Lal & Co from January 1991.” Further ‘whilst the Plaintiff was abroad the first and second Defendants without the knowledge and or assent of the Plaintiff, fraudulently purported to act as agent for the Plaintiff in dealing with the Fiji Revenue and Customs Authority, in relation to the personal tax affairs of the Plaintiff.’

At this stage of the proceedings, the court should proceed on the basis that the claim is bona fide and has reasonable prospects of success. It is for the court to hear the case in terms of the evidence tendered in the proceedings and determine accordingly.

(vi) Foreign Plaintiffs
Where a Plaintiff is ordinarily resident overseas and has no assets in the jurisdiction, there must be weighty reasons why an order for security for costs should not be made. A Defendant is not expected to bear the uncertainty of enforcement in a foreign country. The difficulty in enforcing an order for costs overseas against a non-resident Plaintiff will usually be sufficient to ground an order, especially where there is no reciprocal right of enforcement in the relevant foreign jurisdiction.

(vii) Delay
Application for security should be brought promptly and delay by a Defendant is a relevant factor in the exercise of the discretion. However, the passage of time is but a factor to be taken into account in the balancing exercise. The delay must be weighed in terms of prejudice and factors that have led to the delay.

In this case the Plaintiff commenced proceedings on 13th November, 2014 and the Defendants filed separate applications seeking security for costs on 18th March, 2015, some four (4) months after.

1. The Plaintiff in this case commenced proceedings against the Defendants by way of a Writ of Summons on 13th November, 2014, wherein he claims that “the First and Second Defendants by their actions have fraudulently deprived the Plaintiff off his interest and share in the partnership of G Lal & Co from January 1991.” Further ‘whilst the Plaintiff was abroad the first and second Defendants without the knowledge and or assent of the Plaintiff, fraudulently purported to act as agent for the Plaintiff in dealing with the Fiji Revenue and Customs Authority, in relation to the personal tax affairs of the Plaintiff”’ as set out in the statement of claim.
2. So far, the pleadings have reached the stage where the Plaintiff has obtained orders on the Summons for Directions for the Plaintiff and Defendants to file and serve their respective affidavit verifying list of documents, and inspection of documents. Henceforth, after due compliance, parties will invoke the next cause of action for a Pre- Trial Conference and minutes to be filed in terms of the High Court Rules 1988. At present, the substantive matter has come at a standstill in terms of filing of pleadings, and consequently, some four (4) months later, the Defendants thought fit to file separate applications for security for costs.
3. The Plaintiff has not attended to the next cause of action and or filed his affidavit verifying Plaintiff’s list of documents as per the court’s order on the Summons for Directions to pursue the case further and then allow the Defendants to file their affidavit verifying Defendants’ list of documents and so on. The Plaintiff cannot just delay the prosecution of his case because of the pending application for security for cost. If the Plaintiff is at all serious about his claim, then he should have taken due diligence with the prosecution of the same rather than await the outcome of this pending security for costs application. Further, there is no evidence before me that the delay in this pending application for security for cost has caused hardship for the future conduct of this action by the Plaintiff.
4. The First Defendant has separately sought for security for costs to an amount more than $200,000 and for the Second Defendant with overseas Counsel in excess of $600,000 respectively.
5. The security for cost is rather ordered to secure the Defendants, in an event of Plaintiff's claim being not successful at the conclusion of the hearing. The security for cost sought by the Defendants in anticipation up to the conclusion of the case to meet the cost, if the Plaintiff's claim is dismissed, is exorbitant in nature. A decision in any case comes only after a full hearing and determination. It may not be prudent to judge a case on the face of it, prima facie.
6. The court can order security for cost up to a particular stage of the proceedings. A further application will be required after passing that stage of the trial. The Defendants will be at liberty to make decisions whether any further applications for security for costs will be necessitated, having regards to all the circumstances of this case. Bearing in mind the present status quo of this case, it cannot be said how the case will be handled by the parties hereafter.
7. Considering the circumstance of the case, I will order a cost of $7,500 to each of the two Defendants, a total of $15,000.
8. This amount to be deposited into the Chief Registrar’s interest bearing account in the High Court.t Further, the Plaintiff is directed to remit the said sum within 28 days from today. If the money is not deposited within 28 days as directed herein, the Plaintiff’s case will be struck out accordingly.

1. CONCLUSION

1. Taking into consideration the above rational, I will accede to the First and Second Defendant’s application to order security for costs at $7,500 to each of the Defendants, a total of $15,000.
2. The Plaintiff is directed to remit the abovementioned sum within 28 days from today. If the money is not deposited within 28 days into the Chief Registrar’s interest bearing account, the action will be struck out accordingly.
3. The Plaintiff is also directed to file and serve his affidavit verifying Plaintiff’s list of Documents within 28 days from today and 28 days thereafter, for the two Defendants to file their affidavit verifying Defendants list of documents accordingly.

1. FINAL ORDERS

1. The Plaintiff is directed to deposit a total sum of $15,000 into the Chief Registrar’s interest bearing account at the High Court in Suva, as security for cost within 28 days.
2. The action will be struck out if the abovementioned direction is not complied within the stipulated time frame of 28 days.
3. The Plaintiff is further directed to file and serve summons for directions within 21 days from today.
4. The cost of this application is assessed summarily at $750 and the cost should be paid to the Defendant within 21 days.
5. The case will now be scheduled for further directions on 02nd December, 2015 at 9 am.

Dated at Suva this 03rd day of November, 2015

VISHWA DATT SHARMA
Acting Master of the High Court
Full judgment:
lhttp://www.paclii.org/cgi-bin/sinodisp/fj/cases/FJHC/2015/844.html?stem=&synonyms=&query=nalin%20patel

The FTUC remains steadfast in its struggle for the restoration of workers rights in Fiji. It is often forgotten that it was FTUC that negotiated with Governments and Employers representatives for the change in Labour Laws in Fiji after the so called Labour Reforms imposed in 1989 by the Rabuka interim Government. It was the FTUC representatives in Parliament that saw the passage of the Employment Relations Bill in Parliament in 2006 just prior to the Coup in December 2006.

It was FTUC that persevered to ensure that the Bill which got stuck in the Senate on the day the Coup took place was implemented in 2007 as the ERP that all workers in Fiji today derive their rights from. The Tripartite partners (Government, FCEF and FTUC) agreed that a review of the ERP should be conducted after 5 years of it being in effect to address any shortcomings. This comprehensive review was conducted 2012 -2013 by the Tripartite partners. The implementation of this review is part of the Geneva Agreement.

It is unfortunate that many people who in the comfort of their homes and offices have no idea the work that FTUC has put in to improve the lives of working people. Yes there is still much to be achieved, more so after the draconian decrees since 2009. That work and struggle continues which is why FTUC has pursued the matter with ILO, ITUC, EU and many governments around the world.

Some believe that FTUC ought to only seek a Commission of Inquiry (COI) at the ILO and should not enter into any dialogue with Government. They believe that any dialogue is a sign of weakness. I disagree. Dialogue on the basis of equality and mutual respect is the only way to effectively resolve the impasse. Even if a COI is decided by ILO, the Tripartite partners will at some point have to enter into dialogue to resolve matters in dispute. The COI is not an end in self but a means to an end. It is to achieve a speedy resolution. The FTUC is focused on achieving the desired results and not to punish the Government or the Country.

We have had fruitful discussions with the new Minister for Labour last Saturday. Certain matters in dispute have been agreed to and we await their implementation. Further discussions are planned on outstanding issues. I have been warned by many that Government will not honor any agreement as it did not honor the Geneva Agreement. There is some merit in this advice. However, I am willing to enter into discussions with the new Minister and give him the opportunity to address the issues in dispute between Government and FTUC. We have agreed that the Geneva Agreement must be implemented. A COI will seek to do the same if appointed. Many talk of trade sanctions without having any understanding of how these happen. Many are ignorant enough to think a COI will solve all the problems and sanctions would be automatic. This is far from reality.

The FTUC will not be moved by professional critics and fly by night experts on these matters. Many of whom have never lifted a finger for workers in Fiji in the most difficult of times let alone do something that would have benefited workers in Fiji. These very people were nowhere to be seen or heard when Many including I were beaten up for what we stand for or when Daniel Urai and I were jailed for about 2 weeks for Trade Union activity in 2011. Yet they today stand on rooftops and make all the noise about what Trade Unions and in particular FTUC should do. They have become champions of workers’ overnight

In today’s Fiji where humour is essential to keep us all sane, we thank this lot for the entertainment and the fact that their blind hypocrisy is amusing.

The FTUC will persevere to achieve worker’s rights and dignity at work.

STATEMENT
[100/Nov/9/ 2015]
 
The only person holding the country to ransom over the dispute with the International Labour Organisation (ILO) is the Prime Minister and this is because he is unable to control his Attorney General and Minister for Finance, says Opposition Shadow Minister for Industrial Relations Ratu Sela Nanovo
 
Opposition Shadow Minister for Employment, Productivity and Industrial Relations Ratu Sela Nanovo said today that the only person holding the country to ransom over the dispute with the International Labour Organisation (ILO) is Prime Minister Bainimarama himself, and this is because of his inability to control his Attorney General and Minister for Finance, Hon. Aiyaz Sayed-Khaiyum. The Prime Minister in theory is head of government but in reality is subservient to Mr Khaiyum. The whole country knows this.
 
Ratu Sela said that our recent history has shown that division and dispute often follows when Hon Khaiyum is involved in trying to solve national issues. This is because Hon Khaiyum has an uncontrollable urge to impose his will rather than to seek solutions that reflect the needs of the people and the country. Ratu Sela was responding to the Prime Minister’s attack on unions and workers representatives claiming they were holding the country to ransom over the standoff with the ILO.
 
The Prime Minister is way out of line here and has simply echoed the ill-conceived strategies and comments of Mr Khaiyum over the ILO dispute. He owes the Unions an apology.
 
Ratu Sela said the draft decision by the ILO and Government, Employers and Union Representatives
Is brief and very clear and reads:-
Regretting the continuing failure to submit a joint implementation report to the Governing Body in accordance with the Tripartite Agreement signed by the Government of the Republic of Fiji, the Fiji Trades Union Congress (FTUC) and the Fiji Commerce and Employers’ Federation (FCEF) on 25 March 2015, and as requested by the Governing Body at its 324th Session (June 2015), the Governing Body decides: GB.325/INS/9(Rev.) GB325-INS_9(Rev.)_[NORME-151103-41]-En.docx 3:-
(a) to call on the Government of Fiji to accept a tripartite mission to review the ongoing obstacles to the submission of a joint implementation report and consider all matters pending in the article 26 complaint;
(b) That, if the tripartite mission did not take place in time for a report to the 326th Session of the Governing Body (March 2016), then the 326th Session should take a decision on the appointment of a commission of inquiry under article 26; and
(2)
 
(c) To place this question on the agenda of its 326th Session.
Ratu Sela said the Prime Minister and his government should stop playing their foolish games, face the facts and start telling the truth. On the ILO agreement, the people should understand that the only reason an ILO Commission of Inquiry will be convened is if the Fiji First government continues to drag its feet and fails to comply with its own undertaking that it signed in the Tripartite Agreement of March 2015. 
That’s it! So the government should just get on with it and protect the country from the negative impact of a Commission of Inquiry.
 
Authorized By                                       
Ratu Sela Nanovo

“Your Prime Minister Bainimarama came to Australia and commented let bygones be bygones and in many respects,it underscores the nature of the relationship with Fiji and Australia where on the front foot we’re both looking forward to a positive future, to strong engagement and our relationship continues to grow so I’m very excited to be back here in Fiji. My second trip this year is an opportunity to continue developing the relationship” said Australian Minister for International development and the Pacific Steven Ciobo. He also met with Aiyaz Sayed Khaiyum and Minister for Women & Children Rosy Akbar.
” We had a good conversation. Meeting with both ministers was an opportunity to run through the values Australia places on the relationship, an opportunity to focus on the many areas that we have in common. Australia and Fiji of course want to continue to develop the relationship we’re doing that in a number of ways”

Transcript

Fiji's Land Force Commander Sitiveni Qiliho says the military had good intentions in recruiting three suspended police officers who've been charged with assault.

The trio have been charged in relation to the assault of Iowane Benedito which was captured in a video which went viral nearly three years ago.

Colonel Qiliho told Sally Round the men were working for the safety of the people of Fiji and had been abandoned by the police.

CMMDR SITIVENI QILIHO: They haven't been convicted yet but unfortunately the police force has abandoned them. They were working for the Fiji police force and they were working with military officers. Now we will stand by our men and women through thick and thin. We're not going to abandon them. So they have come to us that they've been abandoned by the Fiji police and we've recruited them, they are now part of the military. It's not a new thing. Police officers have been recruited before into the RFMF and also the Commander RFMF, in his constitutional powers, has the powers to hire and fire. We've done that with good intentions, that they were working for the safety of the people of Fiji. They might have been now involved on the wrong side of the law but we'll go through the court process. It doesn't mean that we've recruited them that we will not go through the court process. No, that will continue. We took them on because they were abandoned.

SALLY ROUND: And what jobs are they doing with the military?

SQ: The military doesn't divulge jobs that we give. There are military police here that we can employ them in. There's other duties that we can employ them in. We don't have to tell the whole world what each individual is doing in the military.

SR: So are there many police that have, that you say you've recruited in this way, they've been abandoned by the police, they've come to you and you've taken them on?

SQ: No, no it's not for a similar case but we've had police who've resigned from the police force and we've taken them on in the RFMF in various capacities over the years since 1987. They have not been convicted. Now the media is convicting them already. That is what you are alluding to now. Let's wait for the court process.

SR: Would you not have waited though until they had been cleared to recruit them?

SQ: You mean for them to fight their own battles out there without the capability of hiring lawyers, do you mean to tell me that?

SR: So is the military providing lawyers for them in court?

SQ: Yes we have a lawyer fighting for our service personnel who are involved in the same case. We've hired a lawyer and they're looking after the three policemen as well.

SR: There have been some concerns expressed that the military feels it is above the rule of law in doing this. What is your response to that?

SQ: Look, we the military was involved in 2006 and was very happy with the constitution coming into place. Have we said that we won't produce them in court? Have we said that? You have to ask the people saying that we are above the rule of law to answer your question. We're not going to answer that. The men have appeared in court. They're out on bail. Where do you stand above the law in that? We won't be drawn into commenting on what other people have said and especially what other political parties have said. We are not going to be a political football.

SR: There was some reporting of the case of Pita Matairavula. The police went to try and arrest him but he was at the military barracks and they couldn't get to him. Is that true?

SQ: I'm not sure of that allegation. You need to clarify that with the people who are saying it. Pita Matairavula appeared in the Lautoka Court and he came back. He reports to work. I wasn't approached by the police looking for Matairavula.

SR: So that's not true then?

SQ: I don't know who's making those allegations. You have to ask the police that whether they made approaches to me or whoever they're looking for because Peter Matairavula works for me in land forces so nobody approached me.

SR: But the military would they protect their soldiers in this way, if the police came looking for them would they say, no he's on the barracks you can't have access to him. Would they do that?

SQ: Like any military barracks around the world nobody has free reign walking into the barracks. If they just wanted to drive into any military barracks, it doesn't happen. It doesn't happen even there in New Zealand or does the police have free access into New Zealand military camps? I doubt it.

Major Laisenia Bale Tuitubou undertook a peacekeeping mission to the Sinai. There were female Fijian police officers in this mission. During the mission Major Tuitubou had an affair with a fellow married Fijian female police officer. It was during the time of Teleni’s run as Police Commissioner and his law of “extra marital affairs in the police force will find you sacked”. Upon Major Tuitubou’s return, and later in 2009, the affair was found out and both the female police officer and Major Tuitubou were relieved of their military and police duties and sacked as per “Teleni’s law”. But fast forward to 2011 and what has happened? Major Tuitubou is now Commissioner Central, Lieutenant-Colonel Laisenia Bale Tuitubou. Source: Coufourpointfive, January 2012

Frank Bainimarama’s most influential spin doctor, the former Channel 9 news reporter Graham Davis, has told friends he has resigned his consultancy with Qorvis and will soon be relocating back to Australia.
 
On the surface, he blames ailing health. But he is also known to have grown deeply frustrated with the power-at-all-costs style of rule shown by Bainimarama and Aiyaz Sayed-Khaiyum as the reality and frictions of government sinks in, with a yawning deficit to cover and an increasingly assertive military.
 
For the past three years, 62-year-old Davis has declared himself as a consultant to the GeoPolitical Solutions division of the global communications company, Qorvis-MSLGROUP – better known as Qorvis in Fiji – which has had a long term contract to burnish the Fiji government’s poor reputation. He has also had three years as a Fiji Sun columnist.
 
Three sets of friends contacted by Fiji Leaks confirmed that Davis considers seeing the country through to elections last year as being the conclusion of his commitment to help the Bainimarama regime. His final published commentary on his Grubsheet blog is dated September 22 last year, titled ‘The New Democracy Begins.’ He hasn’t written any further updates. Fijileaks had reproduced his September 22 column.
 
But in that very same September 2014 posting lies clues to the inevitable break with Bainimarama that could only have been hastened by this week’s shocking turn of events relating to Police Commissioner Ben Groenewald and his attempts to bring to court three of his officers accused of bashing up and indecently assaulting escaped prisoners.
 
In September last year Davis was happy to blast critics of the country’s judiciary:
 
‘The truth is that no credible evidence has ever been advanced that the executive branch of the Fijian Government influences the judiciary, nor that the judiciary does the Government’s bidding. Indeed the Chief Justice, Anthony Gates, and his fellow judges pride themselves on being fiercely independent, as does Christopher Pryde, the NZ-born Director of Public Prosecutions.’ Graham Davis, September 22 2014
 
The turn of events this past week surrounding the three police officers accused of assault, indecent assault and rape in two prisoner-escape cases could only have confirmed Davis’ intention to walk away.  Attempts by the Director of Public Prosecutions to bring the three accused police officers to court were thwarted when they were recruited directly into the Army and provided with an Army lawyer.
 
In March 2013, when the 9-minute video first emerged of bank-robber Iowane Benedito and Epeli Qaraniqio being beaten Davis had written:
 
‘Nothing can justify the abuse these recaptured prisoners suffered – something that the police themselves have acknowledged by expressing their own disquiet and announcing an investigation. It may not have been as bad as some human rights abuses in other parts of the world but that’s not the point. This is Fiji and we generally don’t see ourselves in this way. That’s why there has been such shock and revulsion across the community – people saying that it made them cry and they couldn’t sleep – which is an encouraging sign of the moral state of the nation in itself.’

Qaraniqio’s beatings were so bad part of his right leg had to be amputated and the reaction to the video was global and shocking. Even prompting revulsion from Fijians like former All Black Joe Rokocoko who had no history of political engagement. Rokocoko tweeted to this 60,000 followers: “Really sad/upset to see some of our people in the Pacific (Fiji) being tortured/humiliated in a manner no one deserve. Pray 4 change."
 
But now Bainimarama has set a course back to rule by military – with Colonel Sitiveni Qiliho named acting Police Commissioner, and the three accused still sheltered by the military – all that Davis has worked for appears to be coming undone. Fiji is no more a democracy now, measured by the strength of its various independent judiciary functions – than it was when Davis first started cheer leading for Bainimarama in the aftermath of the December 2006 coup.

Fijileaks: We are yet to hear from Davis for comment.

http://www.grubsheet.com.au/the-new-democracy-begins/

http://www.fijileaks.com/home/a-new-democracy-graham-davis-reflects-on-2104-election-for-fiji-it-is-a-wonderful-moment-in-the-life-of-the-nation-and-a-historical-watershed-the-birth-of-our-first-real-democracy

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