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Nand v Commissioner of Police [2008] FJMC 17; Civil Case No 47 of 2008 (21 November 2008)

IN THE RESIDENT MAGISTRATES’ COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CIVIL CASE NO.: 47 OF 2008

BETWEEN:

DEWA NAND
PLAINTIFF

AND:

COMMISSIONER OF POLICE

ATTORNEY GENERAL OF FIJI

LAND TRANSPORT AUTHORITY
DEFENDANTS

Counsel for the Plaintiff: Mr. Haroon Ali Shah
Counsel for 1st and 2nd Defendants: Mr. S. Turaga
Counsel for 3rd Defendant: Mr. S. Sovau

Date of Hearing:
Date of Ruling: 21st November, 2008

RULING

[1] This is the 1st and 2nd defendant’s application for stay pending appeal against my judgment delivered on 24/10/08.

[2] Before I deal with the 1st and 2nd defendant’s application I wish to briefly discuss the applications made by the 3rd defendant in this matter. The 3rd defendant on 05/11/08 made an ex-parte application to set aside the judgment that I delivered on 24/10/08 and when I pointed out to the counsel for the 3rd defendant that having delivered the judgment I now funtus officio to deal with his setting aside application and that his only recourse is to appeal against the judgment he then sought leave to withdraw the motion to set aside the judgment.

[3] The 3rd defendant’s application for stay was amended to an inter-parte notice of motion and was set down for hearing on 19/11/08. Mr. Shah raised a preliminary issue in that the 3rd defendant has not filed notice of intention to appeal or the grounds of appeal and was therefore precluded from arguing the application for stay. Mr. Sovau of counsel for the 3rd defendant having considered the decision in the case of Crest Chicken Limited –v- Central Enterprises Limited and Detective Constable Atalifo Wise Civil Appeal No. 13 of 2003 a decision of Pathik J withdrew his application for stay and as such the plaintiff is now able to enforce the judgment against the 3rd defendant.

[4] When I delivered my judgment I made an award against all the defendants and I further ordered that the amount shall be paid by all the defendants jointly and severally.

1st and 2nd Defendant’s Application for Stay Pending Appeal

[5] The 1st and 2nd defendants filed a motion for stay pending appeal on 11/11/08 and filed an affidavit in support of Mr. Jeremaia Lewaravu who is the Acting Senior Legal Officer at the office of the Attorney General in Lautoka. The matters that I have to take into account in considering this stay application was stated in the case of Natural Waters of Viti Levu Limited –v- Crystal Clear Mineral Water Limited Civil Appeal No.: ABU0011 of 2004 which are as follows:

"a. Whether, if no stay is granted, the applicant’s right of appeal will be rendered nugatory (this is not determinative). See Philip Morris (NZ) Ltd. –v- Liggett & Myers Tobacco Co. (NZ) Ltd. [1977] 2 NZLR 41 (CA).

b. Whether the successful party will be injuriously affected by the stay.

c. The bona fides of the applicants as to the prosecution of the appeal.

d. The effect on third parties.

e. The novelty and importance of questions involved.

f. The public interest in the proceeding.

g. The overall balance of convenience and the status quo."

[6] Mr. Turaga for the applicant strongly suggested that stay should be granted and in making that submission he submitted that the issue on appeal is both the liability and quantum which is a public issue and he further submitted that a clear and definite finding has to be made in respect of seizure of motor vehicle and he therefore submitted that the balance of convenience is that the application should be granted.

[7] Mr. Shah for the respondent submitted that there has to be affidavit evidence as to why stay should be granted and that affidavit of Mr. Jeremaia Lewaravu falls short and that the Court should also consider as to whether there is any merit in the appeal and he took the view that the appeal had no merit and the application should be dismissed.

[8] At paragraph 5 of the affidavit of Mr. Jeremaia Lewaravu it is stated as follows:

"That after reading the said judgment, it is our considered view of our Office and do sincerely believe that the learned trial Magistrate erred in fact and law in his analysis, assessment and consideration given the factual situation of the case and had failed to take into account relevant considerations."

[9] In the case of Kinijoji Tuisawau –v- Abdul Karim and Kamral Nisha Karim Civil Action No. 595 of 1991 Pathik J at page 4 of unreported decision said as follows:

"The alleged misdirection and judgment being "against and weight" of evidence in the said ground will be of no avail to enable the applicant to succeed in obtaining a stay."

[10] In the case of Nagessar Prasad –v- Babu Lal Civil Action No. HBC 352D of 2006S Jitoko J refused to grant a stay and in doing so he held that he was satisfied that there was no merit in the appeal.

[11] On the issue of novelty and importance of questions involved. The issue regarding seizure of the motor vehicle has already been decided by Pathik J in the case of Narayan–v- Commissioner of Police Civil Appeal Action No. HBC 35 of 2003 and I do not know what are the issues that are yet to be determined.

CONCLUSION

[12] The applicant has not been able to establish that there are special circumstances and further in my view the appeal does not have any merit and therefore the application is dismissed with costs summarily assessed against the 1st and 2nd defendants in the sum of $150.00.

[Mohammed Shafiullah Khan]
Resident Magistrate

21st November, 2008