| Fiji Islands - Charan v Bansraj - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CIVIL APPEAL NO. HBA 0018 OF 1997
BETWEEN:
SURESH CHARAN
Appellant
AND:
BANSRAJ
Respondent
Appellant and Resnt in person
Dates of Hearing and Submissions: 11th December, 1997,
11th and 16th February 1998
Date of Judgment: 26th August 1999
JUDGMENT
This purports to be an appeal from a decision of Resident Magistrate Miss Gwen Phillips given on the 12th of May 1997 in which she
refused the Appellant leave to appeal out of time from a decision of the Small Claims Tribunal given on the 8th of November 1996
in which the Tribunal ordered the Appellant to pay the Respondent $2,000.00 arrears of rent.
I say "purports to be an appeal" deliberately because in reality this is a brazen attempt by the Appellant to have a Judge
of this Court review a decision of one of his brothers, in this case Mr. Justice Scott. I shall explain.
When the parties first appeared before me on the 11th of December 1997 I gave them leave to deliver written submissions over the period
of 12th January to 19th February 1998. On the 13th of May 1998 in response to a request from the Respondent I stated that I would
defer giving my judgment until after the Respondent returned from Australia which he estimated would be on or about 31st of August
1998. Because of personal circumstances that then intervened I was not able to consider the preparation of this judgment until the
20th of August 1999. I then discovered that my brother Mr. Justice Scott had already dealt with this matter in a judgment delivered
on the 10th of July 1997 in which he dismissed the Appellant's application for leave to appeal from the decision of the Resident
Magistrate.
When they appeared before me on the 11th of December 1997 neither party disclosed to me the fact that the matter had already been
dealt with by Mr. Justice Scott. Likewise no mention was made of this in the 16-page submissions of the Appellant and the 1-page
submissions of the Respondent. I can forgive the Respondent for this because it is not disputed that he is not a lawyer. I cannot
forgive the Appellant because, although he is not a lawyer he notoriously spends most of his time in the precincts of or in the Courts
at Suva. His first appearance before me was shortly after I arrived in Fiji in 1989 and since then he has appeared frequently in
person either before me or before the other Judges of this court and the Magistrates' Courts.
I take him therefore to be familiar with the basic rule of advocacy that it is the duty to disclose to a Court any matter relating
to the issue before the Court of which the litigant or lawyer has knowledge.
In this case the Appellant was obliged to disclose to me that his appeal had already been dealt with by Mr. Justice Scott and therefore
it was res judicata and I had no jurisdiction to hear the matter.
I am left with the conclusion that this was a deliberate attempt by the Appellant to have another Judge of this Court review the decision
of one of his brothers in the hope that he might have better luck the second time. As such in my opinion it constitutes a serious
abuse of process and I intend to refer the papers immediately to the Attorney-General with a view to his considering the laying against
the Appellant of charges of contempt of court both of Mr. Justice Scott and of myself.
I have discussed the matter with Mr. Justice Scott and he agrees with me that there is strong prima facie evidence of contempt against
the Appellant.
I am at a loss to understand how the Magistrate's Court ever referred this matter again to the High Court knowing, as it must have
or at least should have, that the appeal had already been dealt with by the High Court. I have not been able to obtain any explanation
for this.
I therefore order that the appeal be dismissed as an abuse of process and that the Appellant pay the Respondent the sum of $2,000.00
within seven days of the date of delivery of this judgment failing which execution is to be levied against the Appellant.
JOHN E. BYRNE
JUDGE
Hba0018j.97s
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