In re Application by Anare Driu Tuidraki [2009] FJHC 208; HBA13.2009L (18 September 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

Civil Appeal No. 13 of 2009L

IN THE MATTER of DISTRESS FOR
RENT ACT (Chapter 36)

AND

IN THE MATTER of an application by
ANARE DRIU TUIDRAKI of Nakavu, Nadi, Special Body Guard,
for a General Certificate to Act as a Bailiff to levy distress for rent

FINAL JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr. K Kumar & Mr. Lutumailagi for the Applicant

Solicitors: Messrs Patel & Sharma for the Applicant

Date of Hearing: 16 September 2009
Date of Judgment: 18 September 2009

INTRODUCTION

[1] This is an appeal from the Nadi Magistrates Court in respect of the learned Magistrate’s refusal to issue the applicant with a General Certificate to act as a Bailiff under s 3 of the Distress for Rent Act [Cap 36].

GROUNDS OF APPEAL

[2] The main ground of appeal was that the Magistrate took into account the applicant’s previous convictions, the last dating back to 23 October 1989.

[3] It appears that the Magistrate was swayed by a Police report recommending that the application be refused because of these convictions.

CONSIDERATION OF THE APPEAL

[4] The applicant was unrepresented and may not have drawn His Worship’s attention to the Rehabilitation of Offenders (Irrelevant Convictions) Act 1997.

[5] Sections 3, 4, 5 and 6 of the Act, so far as relevant here makes convictions of more than 10 years irrelevant for consideration. The last of the convictions here was close to 20 years ago. Sections 9, 12 and 15 of the Act prohibit the learned Magistrate from taking those irrelevant convictions into account. His Worship clearly erred in this regard.

[6] I note that the police officer responsible for disclosing the applicant’s irrelevant convictions may have committed an offence under s 22 of the Act. I do not have power to expunge the applicant’s convictions but I can order that all copies of the Police report submitted to Court be destroyed and order accordingly.

[7] Counsel also drew my attention to the case of State v Koroi [2002] FJHC 144; HAA0050J.2002S (12 August 2002) where Justice Shameem said: "I do not consider that (the learned Magistrate) erred in ignoring the two previous convictions of the Respondent. They are more than 20 years old and were rightly disregarded."

[8] The applicant had been issued with a Bailiff’s Certificate in 2005 and 2006. In 2007 and 2008 he went to Liberia as a security officer with an American company under contract with the Liberian Government. He produced his Identification Card issued by that company to prove his absence from Fiji in those years. It was only after he came back that he re-applied for his Certificate.

[9] In these circumstances, I find that the applicant is a fit and proper person and the learned Magistrate erred in not granting him a General Certificate to act as a bailiff.

ORDERS

[10] The Orders are therefore as follows:

1. The appeal is upheld.
   
2. I direct the Nadi Magistrates Court to issue the applicant with a certificate to act as a bailiff under s 3 of the Distress for Rent Act [Cap 36] forthwith.
   
3. I direct that the High Court Registry remove and destroy all copies of the police report submitted to the Nadi Magistrates Court.
   

Sosefo Inoke
Judge