Chief Justice Satiu Simativa Perese has dismissed an application for interim declaratory orders filed by the outgoing President of the Lands and Titles Court, Letufuga Atilla Ropati against his dismissal as President.
The decision was issued today following a hearing conducted on Pickwick basis where Letufuga sought “urgent relief, by way of an exparte (or without notice) application.
According to the three-page order, the Chief Justice is satisfied there is a serious issue to be tried; namely, whether s.67 of the Land and Titles Court Act 2020 means the Applicant was summarily dismissed without cause as the President of the Court when the Act came into force, and if he was not,’ can he nevertheless be subsequently dismissed whilst he is carrying out his duties under the transitional provisions of the Act.
The Attorney General in her submissions responds by arguing that the decision to appoint a new President arises under the Constitution and that the Government is obliged to make the Constitutional appointment to lead the new Judiciary with all its new features.
Whether the Attorney General’s submission adequately addresses the summary effect of the Act is a matter for further consideration at a hearing.
The balance of convenience was cited by the Chief Justice and the second issue is whether the balance of convenience favours the making of an interim declaration.
His Honours stated that normally, where the Government is involved, the conventional wisdom is that damages are an adequate remedy. In this case, it is difficult to see how an award of damages could ever compensate the harm which would cause to the independence of a person holding the office of President of the Land and Titles Court.
Having heard from the Attorney General, she submits that it is imperative that the new President, whose warrant has been signed by the Acting Head of State to act as of today 1 November 2022, is allowed to begin leading the new Judicial system brought into existence by the Act and the changes to the Constitution.
“Importantly, the Attorney General submits membership of the Judicial Services Commission is now complete and that body will be able to appoint new Judges to sit in the new jurisdiction, once the appointment criteria is added to the Act, which is hoped to be amended in the December sitting of Parliament.
It is well known there are backlog issues in the LTC, the appointment of new judges will enable the addressing of proceedings that are not provided for in the Act’s transitional provisions.
The principle of judicial independence with respect to tenure is of fundamental importance,” said the Chief Justice.
Adding that whether the Government has acted in breach of that principle can be adequate, in this case, be addressed in damages and a declaration from the court.
“It is material in my decision that even if it could be shown that the Applicant has been improperly dismissed that he would not automatically be entitled to continue to be the President of the LTC for that new legal system. Post the Act and the constitutional amendment the new role is not specifically provided for in the Constitution.
“The Applicant was appointed President under the LTC 1981 Act.
“The Administration of justice requires that I give proper weight to the interest of those affected by the uncertainties to the new LTC system caused by the continued delay in the appointment of Judges under the Act and a President under the constitution.
“I also consider that the applicant has not been chosen to lead the new LTC legal system, and this court should be slow to interfere with judgement calls made by those empowered by the Constitution to make them.
“As a result, I consider that the balance of inconvenience does not lie in favour of the granting of interim orders,” says the Chief Justice’s order.
Having read the motion, affidavit of the Applicant and Counsels memorandum filed in support and having heard from counsel he is satisfied that an interim declaration is not reasonably necessary to preserve the position pending further order of the court.
“For these reasons, I dismiss the Applicant’s application.”
