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B.R. Kwon v Suva City Council (No 2) [2000] FJLawRp 71; [2000] 2 FLR 134 (27 December 2000)

[2000] 2 FLR 134

IN THE HIGH COURT OF FIJI

B.R. KWON

v

SUVA CITY COUNCIL (No. 2)

High Court Criminal Appellate Jurisdiction
Shameem J
27 December 2000
HAA 081/00S

Stay of sentence pending appeal - whether appeal will be rendered nugatory if stay not granted - whether appellant will be ruined by execution of judgment pending appeal - balance of convenience test - Town Planning Act ss27(1)(b), 27(5)

The appellant sought a stay of the sentence imposed by the Magistrates Court upon a conviction for a breach of sections 27(1)(b) and 27(5) of the Town Planning Act. The learned appellate Judge discussed at length the principles governing a stay application.

HELD - The appellant will be far more prejudiced than the respondent should stay of sentence is not granted pending appeal. Therefore the application for stay pending appeal is granted.

Cases referred to in Judgment:
foll Reddy Enterprises Ltd. v Governor of the Reserve Bank 37 FLR 73
appl Re Attorney-General of Manitoba (1987) 38 DLR (4^th Ed) 321

Tamara Jayatilleke far appellant
Rajesh Gopal for respondent

27 December 2000.

JUDGMENT

Shameem, J.

This is an application for stay of sentence pending appeal to the Court of Appeal.

On 8th August 2000, the Appellant B.R. Kwon, was convicted of Act in Contravention of Town Planning Scheme contrary to section 27(1)(b) and 27(5) of the Town Planning Act. The Suva Magistrates Court found that the Appellant on the 14th of October 1999, having been served with a notice by the Suva City Council to stop using land within a Commercial "B" zone, for industrial purposes, that is for his motor repair business continued to so use the land.

The Appellant was sentenced on "formal proof" to $400.00 and 4 months imprisonment in default of the fine. Costs of $50 were ordered, and the Appellant was ordered to cease contravention of the Town Planning Scheme within 28 days.

The Appellant appealed against the conviction and sentence on the grounds that the summons had not been personally served, that the evidence on formal proof was insufficient to convict, and that the Learned Magistrate erred in failing to give a time limit to pay the fine and costs.

The appeal was partially successful in that the sentence was varied to impose a time limit for the payment of fine and costs. However the other grounds were dismissed.

The Appellant now appeals to the Court of Appeal on the ground that service of the summons was defective.

Section 22(1) of the Court of Appeal Act, Cap 12, gives to the Appellant an unrestricted right of appeal from an appellate decision of the High Court, on a question of law alone. The question is whether sentence should now be stayed.

Counsel for the Appellant relied on the affidavit of B.R. Kwon sworn on 15th November 2000. The affidavit set out the history of the case, but fails to set out the reasons for stay to be granted. It does not say how B.R. Kwon will be affected if stay is not granted, whether he has any other businesses, whether there will be persons unemployed as a result of the sentence and whether he might be "ruined" if the business is closed down.

However counsel submitted that if the business was to be closed down, the appeal would be rendered nugatory and B.R. Kwon would be ruined. She also said that there were good prospects of the appeal succeeding.

Counsel for the Respondent opposed the application saying that there was no evidence of any hardship to the Appellant if he stopped operations, and paid the fine. He said that the fine could be repaid if the Appellant succeeded in his appeal, and he could resume business.

The principles governing a stay application are well-settled. The successful party should not be deprived of the fruits of his judgment, unless the appeal will be rendered nugatory if the stay is not granted, or the Appellant would be ruined by execution of the judgment pending appeal.

In the oft-cited case of Reddy Enterprises Ltd. -v- The Governor of the Reserve Bank 37 FLR 73, Tikaram JA said at page 87:

"The test here is a determination of which of the two parties will suffer greater harm from granting or refusal of an interim stay pending a determination of the appeal on merits. A balancing of conflicting considerations is required, between the underlying principle that a litigant is entitled to the fruits of his judgment forthwith and the obvious injustice in refusing a stay where such a refusal will render the appeal nugatory or substantially nugatory."

His Lordship referred to, with approval, the decision of the Supreme Court of Canada in Re Attorney-General of Manitoba (1987) 38 DLR (4th Ed) 321, which was that where an injunction might possibly prejudice a public office, then the public interest is a relevant factor in deciding on the application.

Tikaram J.A. said in Reddy's Enterprises (supra) that the principles relevant stay, and to injunctions, on the question of the balance of convenience were comparable.

It is to be deprecated that the Appellant's affidavit is so sparse, in respect of prejudice suffered on execution of the judgment. However the Respondent has not filed any affidavit at all setting out how the Suva City Council's operations might be prejudiced if the Appellant's business was not closed down. I decline to accept counsel's submissions from the bar table that the Appellant has no other business, and that he will lose his livelihood, if the sentence is not stayed. Such information should have been properly adduced in affidavit form.

Looking therefore at the evidence which is before me, the Appellant will be forced to close his motor repair business at 406 Fletcher Road, Vatuwaga, unless a stay is granted. He will also have to pay $400 fine and $50.00 costs. The Suva City Council has not provided any evidence of prejudice to its operations if the business continues. I am not told whether other businesses in the area might be affected, or if its law enforcement work might be hampered if a stay is granted.

On the question of the balance of convenience therefore, it seems that far more prejudice will be sustained by the Appellant pending appeal than to the Respondent.

On this ground therefore a stay of execution of sentence is granted, pending the hearing of the appeal by the Court of Appeal.

Stay of execution of sentence granted pending hearing of appeal.

Mereseini R Vuniwaqa