IN THE HIGH COURT OF THE FIJI ISLANDS
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal Case No. HAA 066 of 2008

BETWEEN:

ASHWIN PRASAD
Applicant

AND:
PRICES AND INCOMES BOARD
Respondent

Appellant in Person
Mr. L. Daunivalu for the Respondent

Date of Ruling: 12 September 2008

RULING

1.	In preparing my ruling on the appeal, I found that there was serious procedural irregularity followed by the learned Magistrate in hearing this case. I have therefore decided on my own accord to exercise the revisional powers of the High Court under section 325 of the Criminal Procedure Code Cap 21, to correct the irregular procedure.

2.	I will therefore not be deciding the appeal at all.

Background

3.	Ashwin Prasad, the appellant was charged on two counts of Failure to Give 12 Weeks of Written Notice for increase Rent: contrary to Clause 2 of the Counter-Inflation[ Notice if Increase in Rent] Order 1996. The particulars of the offence were as follows:

COUNT 1

Particulars of Offence

Mr. Ashwin Prasad f/n Ambika Prasad did on the 28th July 2005 at Lot 34 Kalokalo Crescent, Makoi, Nasinu in the Central Division being a landlord of a residential premises proposed an increase in rental from $200.00 to $225.00 and fail to give 12 weeks written notice to the Prices and Incomes Board for the said proposed increase in rent for the letting or continued letter of the said premises under the tenancy to which the Act applies.

COUNT 2

Particulars of Offence

Mr. Ashwin Prasad f/n Ambika Prasad did on the 14th September 2005 at Lot 34 Kalokalo Crescent, Makoi, Nasinu in the Central Division being a landlord of a residential premises proposed an increase in rental from $200.00 to $305.00 and fail to give 12 weeks written notice to the Prices and Incomes Board for the said proposed increase in rent for the letting of continued letting of the said premises under the tenancy to which the Act applies.

4.	The learned Magistrate found the appellant guilty as charged and imposed a fine of $250.00 in default 3 months imprisonment. The court also ordered that $635.00 paid by the complainant as penalty fees be reimbursed to him.

5.	From the court record it is clear that there were no witnesses called and that the court agreed to receive written submission on the one issue the parties agreed to determination, namely, whether the payment of penalty under clause (1)(c) of a Tenancy Agreement comes with the meaning of ‘any rent’ and for which the mandatory 12 weeks notice requirement under Clause 2 of the Counter Inflation [Notification of Proposed Increases in Rent] Order 1996 applies. 

6.	There is nothing in the court record to explain what was the position of the appellant as regards the charge, should the court find that the penalties imposed under the Tenancy Agreement were covered by the extended definition of ‘rent’ under section 2 of the Counter –Inflation Act Cap 73. 

7.	In reviewing the court record of 20 September 2007, it is clear that the agreement to seek the court’s ruling on the issue of whether the penalty imposed pursuant to tenancy agreement in addition to normal rent was an increase in rent for which a 12 week notice was required under the Counter Inflation Order 1996 was the proper approach. There is nothing in the court record on what the parties agreed to do after the court ruling. Even more importantly, there is no record that the appellant conceded that if the court ruled that the penalty he levied on his tenant’s were ruled by the court to be ‘rent’, then he would be guilty as charged.

8.	The learned Magistrate called for and received written submissions from both parties on the issue raised. She delivered her ruling on the issue of law and also found appellant guilty of the charge without further affording him an opportunity to present any other defence he may have had. That was a serious error that is fatal.

9.	This failure results in a substantial miscarriage of justice and it must addressed by vacating the verdict and the orders made in the court below.

10.	In the light of the above, it is not necessary for me to consider the appeal. 

11.	Under section 309 of the CPC, I make the following Orders:

i)	This matter is remitted to the same learned Magistrate as a part heard matter;

ii)	In the light of learned Magistrates ruling on the ‘rent’ issue, the parties must now be asked to review their respective position and the case to proceed in the usual way to final determination;

iii)	I therefore adjourned the case before the same Learned Magistrate for a call date on 22 September 2008 to fix continuation of the hearing in this matter.

Isikeli Mataitoga
JUDGE

At Suva
12 September 2008.