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Bidesi v Fotofili [1992] FJHC 25; Hbc0579j.91s (14 July 1992)

IN THE HIGH COURT OF FIJI
(AT SUVA)

ACTION NO. 579 OF 1991

IN THE MATTER of an application by SURYA MUNI DAYAL BIDESI,
NARAIN SINGH NIRANJAN and RAM KUAR BIDESI, all
executors and trustees of the estate of CHANDRA PRAKASH BIDESI
under Section 169 of the Land Transfer Act

AND

IN THE MATTER of an application for an Order of Committal

BETWEEN:

SURYA MUNI DAYAL BIDESI, NARAIN SINGH
NIRANJAN and RAM KUAR BIDESI, all of
Suva, Company Directors and Domestic
Duties all executors and Trustees of
the Estate of CHANDRA PRAKASH BIDESI
PLAINTIFFS

AND:

OFA FOTOFILI and SAKARAIA VE
of 2 Davey Avenue, Waimanu Road, Suva
DEFENDANTS

AND

ACTION NO. 47 OF 1992

IN THE MATTER of an application by
JAGDISH CHAND MAHARAJ (s/o Lal Chand)
under Section 169 of the Land Transfer Act

AND

IN THE MATTER of an application for an Order of Committal

BETWEEN:

JAGDISH CHAND MAHARAJ (s/o Lal Chand)
of Tamavua, Suva, Medical Practitioner
PLAINTIFF

AND:

SAKARAIA NAQIO VE
of 23 Benau Street, Vatuwaqa, Suva, Professional Boxer
DEFENDANT

COUNSEL

ACTION NO. 579/91 - Mr. L. Namasivayam for the Plaintiffs
Defendant in Person

ACTION NO. 47/92 - Miss S. Reddy for the Plaintiff
Defendant in Person

Date of Hearing - 6th July 1992
Date of Judgment - 14th July 1992

JUDGMENT

These matters came on for hearing before me on 6th of July 1992. As both of these matters were set down for hearing on the same day and involved the same offence by the same defendant I heard the two matters together.

The defendant, Mr. Sakaraia Naqio Ve appeared before the court to answer charges of civil contempt in relation to both of these matters.

Briefly, the facts of these two actions are as follows:-

In relation to action No. 579/91.

On the 31st of January 1992 Fatiaki J. made an order for vacant possession against the defendant concerning the property known as 2 Davey Avenue, Waimanu Road, Suva. The defendant failed to vacate the premises and a Writ of Possession was issued and served on the defendant on the 1st of April 1992. The defendant was evicted by the Sheriff but within a number of hours he had re-entered the premises. On the 20th of May 1992 the plaintiff was granted leave by Fatiaki J. to issue committal proceedings for contempt against the defendant. The contempt proceeding was set down and came on for hearing before me on the 6th of July 1992. In relation to this matter the plaintiff was also granted leave to issue contempt proceedings also against one of the two wives of the defendant by the name of Ofa Fotofili. On the day of the hearing Ofa Fotofili did not appear and counsel for the plaintiff indicated that the plaintiff would proceed against the defendant and that the proceedings against Ofa Fotofili should be adjourned at that stage. Accordingly, the court adjourned the proceedings against Ofa Fotofili sine die.

In relation to action No. 47/92.

On the 13th of March 1992 Scott J. made an order for vacant possession against the defendant concerning the property known as 23 Benau Street, Vatuwaqa, Suva. The defendant failed to vacate the premises and a Writ of Possession was issued and served on the defendant on the 17th of March 1992. The defendant was evicted by the Sheriff but shortly thereafter re-entered the premises. On the 4th of May 1992 a Writ of Restitution was issued and served on the defendant. Again, the Sheriff evicted the defendant and again he re-entered the premises. On the 12th of June 1992 the plaintiff was granted leave by Fatiaki J. to issue committal proceedings for contempt against the defendant. The proceedings in this matter was set down and came on for hearing before me also on the 6th of July 1992.

Prior to the hearing of both these matters the defendant had engaged counsel. At the hearing counsel for the defendant sought leave to withdraw on the basis that he was of the view that he could be of no assistance or useful purpose to the defendant. I granted leave for the defendant's counsel to withdraw and asked the defendant if he wished for an adjournment to instruct other counsel. The defendant advised the court that he wished to proceed unrepresented. I advised the defendant that both of these matters would be heard at the one time whereupon he was arraigned and asked to plead. To both of these matters the defendant pleaded guilty.

Before me were the affidavits and annexures of one Ram Kuar Bidesi sworn on the 18th of May 1992 in relation to action No. 579/91, and one Jagdish Chand Maharaj sworn on the 25th of May 1992 in relation to action No. 47/92.

On the evidence before me I was satisfied beyond reasonable doubt that the defendant was guilty of contempt of court in that he had wilfully failed and refused to obey the respective orders of the court in these two matters.

The defendant advised the court that he was unemployed and was married with two wives and nine children. The defendant advised the court that he had no previous convictions.

On the allocatus the defendant asked for a further week to vacate the respective premises and that he and his family would leave by Monday the 13th of July 1992. I adjourned sentence in both of these matters to Tuesday the 14th of July 1992.

On the 14th of July 1992 these matters came before me for sentence. Counsel for the respective plaintiffs were present and advised the court that the defendant still had not vacated the respective premises. I asked the defendant what he intended to do and he advised the court that he and his family would not vacate the premises as he did not have alternative accommodation.

In accordance with the defendant's plea of guilty and the court being satisfied as to the defendant's guilt in these two matters I now proceed to sentence.

I take into account:-

(i) the defendant's plea of guilty, and

(ii) that this was the defendant's first offence, and

(iii) the defendant is unemployed and married with two wives and nine children.

However, I am also minded of the defendant's repeated refusal to abide by orders of the court in this regard.

1. In relation to action No. 579/91:-
   

(a) I sentence the defendant to 2 months imprisonment wholly suspended on condition that the defendant does not commit another offence punishable by a term of imprisonment within the next 18 months.

(b) I further order that:-

(i) the defendant and his family vacate the premises at No. 2 Davey Avenue, Waimanu Road, Suva within 14 days, and

(ii) if the defendant and his family fail to vacate the said premises within 14 days then the Sheriff to evict the defendant and his family at the expiration of 14 days.

2. In relation to action No. 47/92:-
   

(a) I sentence the defendant to 2 months imprisonment wholly suspended on condition that the defendant does not commit another offence punishable by a term of imprisonment within the next 18 months.

This sentence to be served concurrently with that in action No. 579/91.

(b) I further order that:-

(i) the defendant and his family vacate the premises at 23 Benau Street, Vatuwaqa, Suva within 14 days, and

(ii) if the defendant and his family fail to vacate the said premises within 14 days then the Sheriff to evict the defendant and his family at the expiration of 14 days.

(David E. Ashton-Lewis)
JUDGE

HBC0579J.91S