CIVIL ACTION NO: HBM0026 OF 2000S
BETWEEN:
VIJAY KUMAR
f/n Ram Harakh
Applicant
AND:
SHIU RAM
f/n Ram Harakh
1st Respondent
AND:
p class=MsoNormoNormal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> AINUL NISHA
a.k.a. ROSE MERRY
2nd Respondent
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Mr A. Singh for Applicant
SENTENCE
On 19th September 2001, I found both Respondentsty of contempt of court, the 2nd Respondent substantively and the 1st/sup> Respondent as an aider and abettor. Mitigation was heard on 27th September 2001. This is the sentence.
The facts of this case are set out in my judgment of 19th September. For the purpose of sentence, it is sufficientay that since the executionution of the Magistrates Court Order of vacant
possession on 20th April 2000, the Respondents have defied the court. The 2nd Respondent has refused to vacate the premises as ordered, and the 1st Respondent has aided and abetted her, in her continued occupation of the house.
There are some mitigating circumstances. The 1st and 2nd Respondents are in a long term relationship and hasmall child. The order was was against the 2nd Respondent only, and I was told by counsel that she has moved into church premises leaving her child behind with his father. It is
unfortunate that the rift in the family has led to this situation, but while the 1st Respondent is determined to remain in the house (as he has every right to do) and pending appeal, the situation is unavoidable. I
accept counsel’s submissions that the Respondents thought that they were within their rights and that they now realise that they
were defying a court order.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> However there are also aggravating circumstances. The length of time the Applicant has been deprived of the fruits of his judgment
is quite unacceptable. He has wasted time and resources pursuing this contempt of court action, when in the normal course of events,
he would have been able to live in the house unless and until a stay order had been obtained. His evidence of the conduct of his
father’s funeral ceremonies from a relative’s house, of the rental he has paid for the accommodation he now occupies with his family,
was compelling. The inconvenience and the expense he has experienced has been compounded by the fact that he is a market vendor and
reliant on subsistence farming.
Taking all these matters into account, and accepcounsel’s submissions that neither Respondent is in any position to pay a fine because
neit neither is employed, I consider that custodial sentences are called for. A custodial sentence will reflect the disapproval of
the court of the flagrant breach of an order of the Magistrates Court. However in the light of the fact that the 2nd Respondent has now complied, and has vacated the premises, I consider it appropriate to suspend both sentences on the condition that
the 2nd Respondent does not commit any offence punishable with imprisonment (including further contempt of court) within the operational
period.
The sentences of the court are as follows:
1st Respondent: &nbssp;&nnsp;&&nsp; & sp;& 6 months imprisonmest susp suspended for 2 years;
2nd Respondent: p;&nssp; 12 months imprisonment sust suspended for 1 year.
 an> <1"> The Applicants are entitled to costs which must be taxed if not agreed.
Nazhat Shameem
<JUDGE
At Suva
28th September 2001
HBM0026X.00S
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2001/74.html
