|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI ISLANDS
CIVIL APPEAL NO.ABU0014 OF 2010
(High Court Civil Action No.29 of 2010L)
BETWEEN:
ALVIN RAJ, SHALENDRA PRATAP & PARTEEP AND HARUNITRA KUMAR
APPELLANTS
AND:
LAUTOKA CITY COUNCIL
RESPONDENT
CORAM: Hon. Justice William R. Marshall, Justice of Appeal
Hon. Justice Izaz Khan, Justice of Appeal
Hon. Justice Kankani T. Chitrasiri, Justice of Appeal
COUNSEL: Mr H A Shah for the Appellants
Ms N Khan for the Respondent
Date of Hearing: Tuesday, 22 February 2011
Date of Judgment: Thursday, 10th March 2011
JUDGMENT
William R. Marshall, JA
1. I agree with the judgment and reasons and the proposed orders of Kankani T. Chitrasiri JA.
Izaz Khan JA
2. I also agree with the judgment and reasons of Chitrasiri JA.
Kankani T. Chitrasiri, JA
3. Introduction
Upon an application dated 16.02.2010 made by the Respondent (Plaintiff in the Original action filed in the High Court) by way of an ex-parte notice of motion, His Lordship Justice Y.A. Fernando sitting at the High Court in Lautoka, issued an interim injunction against the two appellants. (Defendants in the original action filed in the High Court) It had been issued in accordance with the clauses 1 and 2 found in the said ex-parte notice of motion. The aforesaid clauses 1 and 2 read thus:
4. Since the first appellant alleged to have not complied with or not obeyed the said order of court, respondent, consequently moved Court for Notice of Motion for leave to issue committal proceedings against the 1st Appellant namely Mr. Alvin Raj. This application was made by the respondent, upon satisfying that the aforesaid order of interim injunction had been served on the appellants. Learned High Court Judge allowed this application of the respondent and granted leave under Rule 2 of Order 52 of the High Court Rules and permitted to proceed with committal proceedings against the appellants. Accordingly, committal proceedings against the first appellant Alvin Raj were to be taken up on 19.03.2010. On this date, the appellant was absent and therefore a warrant was issued on him by the learned Judge. However, due to the appellant been surrendered to court subsequently, the date for the committal proceedings were fixed for 27.04.2010. On that date, committal proceedings against the first appellant were commenced, upon been explained to him of the charge of having him violated the interim injunction issued by the High Court.
5. After conducting a full scale trial of the committal proceedings, the first appellant was found guilty and was sentenced to five days simple imprisonment. However, the sentence of five days imprisonment was suspended for a period of one year. In addition to the above sentence, first appellant was also ordered to pay $5,000.00 to the Plaintiff as costs. It is against this conviction and the sentence of the learned High Court Judge that this appeal had been preferred.
6. Background
The respondent namely Lautoka City Council being the plaintiff in the action filed in the High Court in Lautoka made an application
by way of Writ of Summons claiming inter-alia that the appellants be prevented from constructing a boundary fence around Lots 7, 8 and 9 referred to in Deposit Plan 9140 being
Housing Authority Sub Lease at Bechu Prasad Road and Vaswa Nand Maharaj Road, Field 40, New Subdivision, Lautoka and also to prevent
a shed being constructed over the aforesaid land.
7. The respondent, along with the Writ of Summons also moved for ex-parte notice of motion for an interim injunction in terms of Order 29 of the High Court Rules read with the inherent jurisdiction vested in Court. This application for an interim injunction was made in order to prevent the appellants, acting in a manner similar to the reliefs referred to the in the preceding paragraph.
8. Having considered the evidence set out in an Affidavit sworn to by Siva Rajan, Acting Chief Executive Officer of the Lautoka City Council, learned High Court Judge issued an interlocutory injunction preventing the appellants, constructing a boundary fence and a shed in the manner referred to in the ex-parte notice of motion.
9. The aforesaid Order and the Summons were issued on the appellants making it returnable on 16th March 2010. Subsequently, an affidavit had been filed by the respondent seeking leave of court to commence committal proceedings against the appellants alleging that they had willfully disobeyed the court order after them becoming aware of the issuance of the interim injunction issued against them.
10. Having considered the contents of the affidavit filed on behalf of the respondent, court granted leave under Rule 2 of Order 52 to proceed against the first appellant and decided that committal proceedings against him be commenced on the 19th March 2010.
11. On that date the appellant was absent and unrepresented. Accordingly, Court issued a warrant against the first appellant and the matter was adjourned for the 26th March 2010. However, the date for the hearing of committal proceedings was changed to 27th April 2010 due to the first appellant been surrendered to Court on the 22nd March 2010. On that day, Court read out the Charge of disobeying the Court Order made on the 6th February 2010 to the first appellant. He pleaded not guilty to the said charge and then the court proceeded with the committal proceedings against him.
12. Four witnesses gave evidence in the committal proceedings on behalf of the respondent whilst only the first appellant himself gave evidence on his behalf. In the end, first appellant was found guilty for the charge of contempt of the High Court of Fiji sitting in Civil Jurisdiction in Lautoka having willfully disobeying the injunction order served on him on 23rd February 2010. Accordingly, the first appellant was sentenced to five days simple imprisonment suspended for one year. He also was ordered to pay a sum of $5,000.00 to the respondent as costs of the action. Being aggrieved by the said conviction and the sentence appellants filed notice of appeal in the Court of Appeal in Fiji. Accordingly, the matter was argued before this Bench on 22.02.2011.
13. Grounds of Appeal
The grounds of this appeal set out on behalf of the appellants are as follows:-
14. The first ground of appeal relates to the serving of the Order dated 16th of February 2010 on the appellants whilst the 2nd to 5th grounds are in respect of the way in which the violation of the aforesaid order had taken place. 6th to 9th grounds of appeal relate to the sentence and the costs ordered by his Lordship Justice Fernando. Accordingly, I will examine the matters according to the said criteria.
15. Analysis
The first ground of appeal is in relation to the serving of the interlocutory injunction that prevented the first appellant making further constructions on the land in dispute. Learned counsel for the appellant had argued that the learned High Court Judge erred in law and in fact in holding that the appellant was served with the order dated 16th February 2010.
16. I have carefully looked at the way that His Lordship Justice Fernando had analyzed the evidence of the witness, Mr. Shamendra Kumar, the Bailiff who supposed to have served the interim Order dated 16th February 2010 and also the testimony of the appellant, Mr. Alvin Raj, at the time he decided on the question of serving of the interim injunction specifically on the first appellant.
17. Having considered the evidence of the above mentioned two witnesses, learned High Court Judge had decided that the respondent had proved beyond reasonable doubt that the interim order had been served on the first appellant. In that decision, he has mentioned the following reasons as to why he came to such a conclusion.
"In the background of the pattern of behavior on the part of Mr. Alvin Raj in:
(a) Denying service of any notice, even from the Lautoka City Council (plaintiff), in the face of even admitting that he rang the second witness Shiva Rajan of the plaintiff on his mobile phone to complain for allowing photographs to be taken to the unauthorized construction and;
(b) his inability to explain as to how he came to know of the bench warrant issued against him on Friday to come to court with counsel on the immediate Monday and;
(c) his total denial of almost everything, even photographs taken on two occasions showing progressive construction, suggesting that he is in a state (psychological) of denial; there is no reasonable doubt in my mind that Mr. Alvin Raj has been served with the injunction order of 16 February 2010 on 23 February 2010. Beyond reasonable doubt does not mean beyond any doubt."
(Vide pages 9 and 10 of the record)
18. Those reasoning of the learned Trial Judge show that he has considered the issue of serving the interim injunction in a judicial manner after hearing both the parties. In such a situation it is not correct to interfere with the findings of the original court judge by the appellate court unless there had been a serious miscarriage of justice. Since there is no such miscarriage of justice in this instance, I am reluctant to reverse the finding of the learned trial judge as to the serving of the interim injunction.
19. Additionally, I also have carefully examined the evidence in respect of the service of the interim injunction on the first appellant.
I will now refer to the relevant evidence of Mr Shamendra Kumar in order to have a clearer idea as to the service of the interlocutory
order.
(Vide evidence recorded in pages 97 onwards of the record)
"Q: Do you know Alvin Raj?
Q. How do you know him?
A. I was introduced to him by his wife. There was a worker when I went to serve papers and he showed me this person as Alvin Raj. Alvin Raj himself admitted that he is Alvin Raj.
Q. Is Alvin Raj in Court today?
A. Yes. Points out Mr. Alvin Raj in.
Went to Alvin Raj's home and called out his name and his wife came out. I asked his wife can I see Alvin Raj then she said he's sleeping: you have to wait for a while. I waited for 30 minutes and one worker came down and informed me what's my business for waiting and I told him the reason for my visit. And then Alvin Raj called me inside his house. When I went inside the house I told him I am a bailiff and came to serve a set of documents. I explained the contents and he started aggressive and argued and he did not want to take the documents, telling me to go and give the documents to his solicitor Mr Shah. I explained that documents are served on you and you have to take it to your solicitor. Then I served him the documents and I came outside. While I was going outside he was still angry and passed remarks at me and I did my service and came out.
After service I came to my office. I report of that incident and an affidavit was prepared and sworn by Commissioner of Oaths – by me, Sworn by me.
Q: Second occasion to serve, Committal orders.
Having so related the way in which the order was served on the first appellant, the bailiff had sworn to an affidavit in support of the service of the interim injunction. (Vide evidence in page 97 of the record).
20. At this stage, It is noteworthy to mention that the learned counsel for the appellant had not posed any question on the aforementioned evidence namely as to the way in which the interim injunction was served on the appellant. Therefore it is implied that the answers given in the examination in chief in relation to the service of the interim injunction had not been disputed even by the learned counsel who appeared for the appellant. In the light of such a background, it is clear that strong evidence is forthcoming to establish that the interim injunction issued on the 16th February 2010 had been served on the first appellant. Therefore, it is my considered view that the learned High Court Judge has correctly decided that the respondent has proved beyond reasonable doubt that the interim injunction was served on the appellants before the alleged construction has taken place.
21. I will now turn to examine the matters relating to the grounds of appeal bearing numbers 2 to 5. Those four grounds relate to the construction of an internal partition wall within Lots 7, 8 and 9 of Deposit Plan 9140. In that, it is alleged that the appellants have violated the interim injunction issued and served on them by making additions to the said internal partition wall. Accordingly, committal proceedings were commenced against the first appellant charging him for contempt of court for the said violation of the interim injunction whereby the appellants were prevented from constructing over the land referred to in the said Deposit Plan 9140.
22. Manner in which the learned High Court Judge has examined the evidence as to the construction of the partition wall in question seems to be analytical. This analysis is found in paragraphs 25 to 31 in his judgment. Moreover, it is clear that he was mindful of the fact that a charge of contempt, as in this instance, should be proved beyond reasonable doubt like in the case of proving a criminal charge in a court of law. Keeping those legal principles in mind, learned Judge seems to have carefully considered the evidence relating to the construction of the partition wall, by or under the authority of the first appellant.
23. In doing so, His Lordship has analyzed the evidence of the fourth witness Mr. Akbar, a building surveyor as well as the evidence of the first appellant. His Lordship had found that Mr. Akbar being a building surveyor and a person residing in the same vicinity in Field 40, New Sub division, has the capacity to observe the status of the construction at different stages in an acceptable manner. Learned Judge also has noted that the witness Akbar is a person who passes the appellant's premises several times a day. In his judgment, it is also stated that the witness, Mr. Akbar had even made notes in his diary on the 25th of February 2010 as to the continuation of the construction work of the internal partition by the appellant.
24. Therefore it is clear that the Learned High Court Judge had fully satisfied himself as to the veracity of the evidence given by Mr. Akbar, especially in respect of the construction work of the internal wall by the appellant. In the circumstances, I do not wish to interfere with the findings of the learned High Court Judge as to the aforesaid construction work.
25. At this stage, it is pertinent to note that the trial judge who heard the evidence of a witness is the best person to decide as to the credibility of that witness and therefore appellate courts would be reluctant to interfere with the decisions of trial judges when such decisions are mainly based on the facts of a given situation. This is an accepted norm in the common law jurisdictions. It is evident by the following authorities. In the case of Carpenters Fiji Limited MBF v. Western Wreckers Limited, (Civil Appeal No.ABU 00018/2007S) the Court of Appeal in Fiji quoting from the decision in Benmax v. Austin Motor Co. Ltd [1955] 1 All E.R. 326 had followed the above rule in law. In that decision of Benmax v. Austin Motor Co. Ltd., it is stated that:
"it is only in rare cases that an appeal court could be satisfied that the trial judge has reached a wrong decision about the credibility of a witness. An appellate Court, on an appeal from a case tried before a judge alone, should not lightly differ from a finding of the trial judge on a question of fact ...".
Furthermore, in the case of Ashmore v. Corp of Lloyd's [1992] 2 All E. R. 486, Lord Templeman had said:
"... I also said that the Appellant Court should be reluctant to entertain complaints about a Judge who controls the conduct of proceedings and limits the time and scope of evidence and argument. So too, where a Judge, for reasons which are not plainly wrong, makes an interlocutory decision or makes a decision in a course of a Trial, that decision should be respected by the parties and if not respected, should be upheld by an Appellate Court unless the Judge was plainly wrong."
Lord Roskill in the aforesaid case Ashmore (Supra) at page 488, had said:
" ... I emphatically disagree. In the Commercial Court and indeed in any Trial Court it is the Trial Judge who had the control of the proceedings. It is part of his duty to identify the crucial issue and to see they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisers of the parties to assist the Trial Judge in carrying out his duty."
26. I also wish to follow the same line of thinking in this instance as well since the decision of the learned High Court Judge had basically depended upon the facts in respect of the construction of a boundary fence. Moreover, it must be mentioned that the findings of the trial judge had been made after seeing the demeanor too of the witness. It also may have helped the Judge to come to the correct decision having given due and proper consideration to the evidence of that witness. In this instance, I do not see that the learned judge had acted wrongly when he considered the totality of the evidence as to the construction work. Hence, I am not inclined to interfere with the decision as to the construction work performed by the first appellant since it is purely a matter concerning facts.
27. The rest of the grounds of appeal namely the grounds bearing numbers 6 to 9 relate to the sentence imposed on the appellant and the costs ordered on him. At this stage, it is necessary to note that the learned counsel for the appellant had not made any submissions on these two aspects namely the excessiveness of the sentence and the award of costs, on the day the matter was taken up for argument before this Court. Even in the written submissions filed on behalf of the appellants, nothing is mentioned as to the costs ordered. However, in the written submissions, in one sentence it is stated that no opportunity was given to the appellants to address court before the sentence was passed.
28. Basically, sentence to an offence is passed in accordance with the gravity of that offence. Other considerations such as character, previous convictions, tendering a plea at an early stage, would be taken into account only after determining the sentence stipulated in a statute. In this instance, the sentence imposed on the appellant is only five days simple imprisonment and that too had been suspended though the sentence for such a serious charge should have been much more. Therefore, the sentence imposed in this instance should not be reduced even if there could exist cogent reasons for mitigation. In the light of the above, I am not inclined to afford an opportunity to the appellants to make submissions to mitigate the sentence.
29. Moreover it must be noted that it may lead to serious consequences unless a severe punishment is imposed for a charge such as a charge of contempt of court. It may also encourage the ordinary citizens not to have due regard to the orders of a court of law. Such consequences may then become a threat to the Rule of Law of the country as well. In fact, it seems to me that the punishment imposed on the appellant in this case is inadequate. Therefore, the sentence passed by the learned High Court Judge should stand intact.
30. Determining the amount of costs in any application made to court is a discretion vested in court. Therefore, I am not inclined to interfere with the order as to the costs of the action.
The Orders of the Court
William R. Marshall, JA
31. The Orders of the Court are:
Hon. Justice William R. Marshall
Justice of Appeal
Hon. Justice Izaz Khan
Justice of Appeal
Hon. Justice Kankani T. Chitrasiri
Justice of Appeal
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJCA/2011/21.html