Kohli v State [2012] FJCA 19; AAU0072.2012 (21 March 2012)

THE COURT OF APEAL OF FIJI
APPELLATE JURISDICTION

Criminal Appeal Nos. AAU 0072 of 2010 & AAU0073 of 2010
In the matter of an appeal from the decision of the Labasa High Court in Criminal cases Nos. HAC 12 of 2010 & HAA 17 of 2010

BETWEEN:

AMI CHANDRA KOHLI
Appellant

AND :

STATE
1st Respondent

AND

EMMANUEL KRISHNA NAIGAM
2nd Respondent
(Son of Nathaniel Naigam-HAC 12 of 2010)

AND:

RANITA DEVI
(d/of Nar Deo 3rd Respondent (HAC 12 of 2010)

AND:

ORISI TOLOI MUSUVANUA
2nd Respondent
(HAA 17 OF 2010)

Before Hon. Justice Basnayake, Justice of Appeal

Counsel: Mr A Kohli, Appellant in Person.
Mr M Korovou for the Respondents

Date of Hearing: 16.3.2012
Date of Judgment: 21.3.2012

RULING

1. These are two appeals filed against the decisions dated 3rd September, 2010 of the learned High Court Judge, sitting in the High Court of Labasa. Notices of Appeal were filed in both cases on 30.9.2010. By these orders the learned Judge had imposed $1000.00 & $500.00 respectively as costs in respect of these two cases. As the facts are similar it is desirable to deliver a single order in respect of both the cases.
   

The First Case (AAU0072 of 2010-HAC-12 of2010)

2. The first case is relating to an order made by the High Court Judge against Mr. Kohli, lawyer appearing for accused. The costs imposed were $1000.00. This order was delivered on 3.9.2010. The accused in this case are Emmanuel Krishna Naigam and Ranita Devi.
   
3. This case was fixed for trial for 2.8.2010 for two weeks. Mr. Kohli informed court that due to an ongoing trial, he is not able to come. That is that the case was fixed for three days in July, namely, 28th, 29th and 30th July. However it was concluding only on 10.8.2010.
   
4. Mr. Kohli's explanation is that he never expected the case fixed in July to extend up to 10.8.2010. As Mr. Kohli could not appear the case was postponed to 10.8.2010 to be mentioned. On 10.8.2010 Mr. Kohli was not present. According to the facts of the case Mr.Kohli arrived in Labasa on 11.8.2010. This case was postponed to 13.8.2010. On 13.8.2010 the court required Mr. Kohli to show cause as to why costs should not be imposed against him. This matter was resolved by way of written submissions. In this case Mr. Kohli filed submissions identical to what he filed in the other case. The reasons that Mr. Kohli gave were the same in both cases as both cases were fixed during the same period. Mr Kohli conceded that the learned Judge is entitled to impose costs in terms of section 150 (4) (c) of the Criminal Procedure Decree. However Mr. Kohli submits that this discretion had to be exercised judicially and the learned Judge had failed to exercise discretion judicially.
   

The Second Case (AAU 0073 of 2010-HAA-17 0f 2010)

5. In the second case an accused by the name of Orisi Toloi Musuvanua was charged under S. 312 (1) of the Crimes Decree No. 44 of 2009. The accused was convicted on his own plea and was sentenced to 3 years imprisonment. The accused appealed against the sentence.
   
6. This case was called in court on 4.8.2010. On 4.8.2010 Mr. Raman Singh appeared for the appellant on behalf of Mr. Kohli. The court made order for the appellant to file written submissions on 9.8.2010 and the State to file submissions on 10.8.2010. The appeal was fixed for 11.8.2010. On 11.8.2010 when this case was called counsel appearing for the accused namely Mr. Kohli was not present in court. On behalf of Mr. Kohli, Mr. Lamaloma moved the case for the next date namely 12.8.2010. The State did not object to the postponement. Hence the case was fixed for 12.8.2010.
   
7. On 12.8.2010 when Mr. Kohli appeared, the court required Mr. Kohli to show cause as to why costs should not be imposed on Mr. Kohli. Both parties were invited to file written submissions. The appellant's submissions were filed on 18.8.2010 and the State's submissions were filed on 24.8.2010.
   
8. The learned Judge delivered his order on 3.9.2010. In that the learned Judge has said that Mr. Kohli had caused undue delay in disposing an appeal and wasted the time of court and imposed costs of $500.00.
   

Submission of Mr. Kohli

9. Mr. Kohli submitted that on 12.8.2010 he was present in court and thereafter filed written submissions. This appeal was heard on 26.8.2010. Mr. Kohli submitted that costs were imposed for not being present in court on 11.8.2010. Mr. Kohli submitted that he could not attend court on 11.8.2010 due to reasons beyond his control.
   
10. He submitted that he never expected the case fixed in July to continue up to 10.8.2010. The case was concluded only at 1.30 p.m. on the 10th. He said that on the 11th morning he got a flight and went to Labasa. When he went to courts he found that his case was postponed for the following day. That is the 12th of August and he attended to the case on the 12th.
    
11. He submitted that he is seeking an order against costs which should be quashed. He further submitted that this case is of great importance for the reason that it will have an impact on all the legal practitioners and on the administration of justice in Fiji.
    
12. The learned counsel for the respondents did not dispute submissions of Mr. Kohli on facts.
    
13. Considering very carefully the circumstances that warranted the learned High court Judge to impose costs on the counsel to be paid by him personally, I am of the view that there is a serious matter to be argued in this case which should be heard before a fuller Bench.
    
14. Therefore I grant leave.
    

ORDERS OF COURT

1. Leave granted in both case

Eric Basnayake
Justice of Appeal