Lautoka City Council v Raj [2010] FJHC 325; HBC029.2010 (11 May 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No HBC 29 of 2010

BETWEEN:

LAUTOKA CITY COUNCIL a body corporate
duly constituted under the provisions of Local Government Act Cap 125
Plaintiff

AND:

ALVIN RAJ, SHALENDRA PRASAD & PARTEEP & HARUNITRA KUMAR
all property owners of Bechu Prasad Road and Baswa Nand Maharaj Road,
Field 40 New Subdivision, Lautoka.
Defendants

Counsels Appearing:

Ms Natasha Khan for the Plaintiff
Mr Haroon Ali Shah for the 1st Defendant

Date of Hearing: 27 April 2010
Date of Judgment: 11 May 2010

COMMITTAL TRIAL

JUDGMENT

[1] On the application of the plaintiff, the Writ of Summons and Ex-parte Notice, this court issued an Interim Injunction against the defendants on 16 February 2010 to:

(a) forthwith stop construction of the illegal boundary fence around lots 7, 8 and 9 on deposit plan 9140 ......and;

(b) forthwith stop construction of the illegal shed over lots 7, 8 and 9 on deposit plan 9140...

(c)

[2] The order and the summons (all papers) were to be served on the defendant's returnable on 16 May 2010.

[3] The order was sealed by the Registry on 22 February 2010 and said to have been served on the first defendant Mr Alvin Raj on 23 February 2010.

[4] On 8 March 2010 the plaintiff filed Ex-parte Notice of Motion for leave to issue committal proceeding against Mr Raj, and leave was granted.

[5] On 10 March Mr Raj was said to have been served with the Ex-parte Notice of Motion for leave to issue committal proceedings, affidavit in support, statement under Order 52 of the High Court Rules and the notice of motion for committal, returnable on 19 March 2010.

[6] On 19 March 2010 the notice for committal having come up before my brother Judge His Lordship Justice Inoke, and the said Mr Alvin Raj failing to appear, a Bench Warrant was issued against him returnable on 26 March 2010.

[7] On 22 March 2010 Mr Alvin Raj appeared (surrendered) through his counsel Mr Haroon Ali Shah and pleaded no papers were served on him. Ms Natasha Khan appeared for the plaintiff. When questioned as to how Mr Alvin Raj came to know of the bench warrant, to be before court on the Monday morning after Friday, before it was even sealed by the Registry, there was no answer and it remained a mystery, explained only by the prior knowledge of this case by Mr Alvin Raj.

[8] The warrant was cancelled and the defendant Mr Alvin Raj agreed for the injunction to continue until the final determination of this action. On Mr Shah moving for a further copy of the papers, he was given the right to obtain it at a fee. The matter of the committal trial was then fixed for the 27 April 2010.

[9] The committal trial was commenced with the court explaining to Mr Alvin Raj that he is charged with having disobeyed the injunction of this court to forthwith stop construction work of the illegal boundary fence and shed over lots 7, 8 and 9 on deposit plan 9140, served on him on 23 February 2010.

[10] Mr Alvin Raj being asked whether he understood that he was being thus charged and him having confirmed that he understood, this court asked him how he pleaded and Mr Alving Raj pleaded not guilty.

[11] At the committal trial four witnesses gave evidence for the plaintiff prosecuting the charge.

[12] The contemnor Mr Alvin Raj gave evidence in his defense.

[13] The first witness Mr Shamendra Kumar the bailiff who is said to have served all relevant papers in this matter, giving evidence very frankly admitted that he did not have a very good memory of dates. He said he makes about 15 services per week. No witness can give evidence perfectly of any event, recent or past. To do so would be the first indication of fabrication.

[14] Mr Shamendra Kumar did not claim to be the perfect bailiff. He ought to keep a diary or a record of the services he makes. Both counsel agreed that there is no practice for bailiffs to maintain such a record in Fiji. Apart from that his demeanor was that of a truthful witness. His admission under cross-examination was his failing in detailed memory. However, his assertion that he served Mr Alvin Raj twice was not shaken.

[15] He was able to give some circumstances that he could remember in making the services. He mentioned he was given four sets of papers and he mentioned them to be:

1. Summons
   
2. Acknowledgement of Service
   
3. Affidavit
   
4. Injunction
   

[16] The fourth witness Mr Maharaj the Clerk of Ms Natasha Khan stated that five sets of papers were given:

1. Writ of Summons
   
2. Statement of Claim
   
3. Notice of Injunction
   
4. Affidavit in Support
   
5. Injunction Order
   

[17] Ms Khan submitted in her written submissions that the writ of summons and the statement of claim are pined together. Both witnesses were consistent about the injunction. Any way the defence contention of Mr Alvin Raj was that he was not served with any papers whatsoever of this action.

[18] Mr Shamendra Kumar further stated that on one occasion Mr Alvin Raj told him to go and serve the papers on his lawyer Mr Haroon Ali Shah. Under cross-examination Mr Alvin Raj stated that "Mr Haroon Ali Shah was my lawyer for years back". It was suggested in cross-examination of Mr Alvin Raj that this knowledge Mr Shamendra Kumar the bailiff would not have had if not for Mr Alvin Raj telling him to serve the papers on Mr Shah.

[19] Throwing the writ away too is not non service as in Naipote Vere –vs- Malakai Vueti (2004) HBC 0511R/02S, Ruling 25 May 2004 per Jitoko J.

[20] When Mr Alvin Raj stated under cross-examination that "I did not receive anything from the bailiff", and when he was asked as to whom he meant by bailiff, he answered after a pause; "I do not know".

[21] The bailiff gave evidence in his presence in the morning and pointed out Mr Alvin Raj in open court. The contemnor Mr Alvin Raj was obviously concerned that his prior knowledge of having met the bailiff Mr Shamendra Kumar would come to light and chose to take refuge by say "I do not know".

[22] Mr Alvin Raj brinkmanship may have brought him rewards in the past, which may well have encouraged him to the point of denying the service of summons and the injunction order as well as the committal papers.

[23] In the background of the pattern of behaviour on the part of Mr Alvin Raj in;

(a) denying service of any notice, even from the Lautoka City Council (plaintiff), in the face of even admitting that he rang the second witness Shiva Rajan of the plaintiff on his mobile phone to complain for allowing photographs to be taken of the unauthorized construction and;

(b) his inability to explain as to how he came to know of the bench warrant issued against him on Friday to come to court with counsel on the immediate Monday and;

(c) his total denial of almost everything, even photographs taken on two occasions showing progressive construction, suggesting that he is in a state (psychological) of denial, there is no reasonable doubt in my mind that Mr Alvin Raj has been served with the injunction order of 16 February 2010 on 23 February 2010. Beyond reasonable doubt does not mean beyond any doubt.

[24] Next this court has to see whether the plaintiff has proved beyond a reasonable doubt that Mr Alvin Raj did construction work in disobedience of the injunction order of this court of 16 February 2010 and did so willfully.

[25] The alleged construction in contempt of this court referred to by the plaintiff's fourth witness Mr Akbar, was to an internal partition wall in the shed which this court restrained him from constructing over lot 7, 8 and 9. However Mr Alvin Raj yet again denied any construction (after 23 February), which he said he stopped in early January 2010 under cross-examination.

[26] Mr Akbar stated that he resides in the same vicinity in Field 40 new subdivision as Mr Alvin Raj. He stated that he passes Mr Alvin Raj's premises several times a day.

[27] He said on 25 February 2010, when he went past Mr Alvin Raj's premises in the afternoon he noticed an internal wall which was not there before. When he was asked by court whether he made any note or record of that, he showed his diary which under 25 February 2010 stated "Alvin Raj continues with the internal partition".

[28] Under cross-examination Mr Akbar admitted that he noticed the internal partition while traveling in a vehicle.

[29] Mr Akbar is a building surveyor, he may be a better observer of walls and their construction than a layman. Even though for him to have noticed it from a moving vehicle it must have been a substantial construction. He admitted he did not make an official inspection as he was apprehensive of Mr Alvin Raj chasing him away, as was allegedly done earlier to some other officers of the Council. Mr Haroon Ali Shah questioned Mr Akbar whether Mr Alvin Raj was good to him and he answered in the affirmative. If the attempt was to show any previous enmity there appears to be none.

[30] When Mr Akbar stated that he saw the internal partition while traveling in a vehicle, it was suggested in cross-examination that it was a fleeting glance. To have noted it in his diary it must have been significant though even fleeting.

[31] Mr Alvin Raj admitted that he did not obtain prior permission of the local authority for his construction work, but even after the council objected he persisted with the unauthorized construction work. I wonder what drove him to such defiance. He appeared to have, whether justifiably or otherwise, developed a disregard for process from authority.

[32] He does not appear to realize that he is living within a locality and he should respond to the local authority that is invested with the function of regulating building construction and maintaining the municipal infrastructure necessary for civilized urban habitation. He cannot live within that locality in a jurisdiction of his own.

[33] His home may well be his castle, but even during feudal times he would have had to answer to the king. On the other hand the local authority too must act with consistency and promptly and should not encourage regulations to be negotiated which encourage indifference and allegations of corruption.

[34] His conduct in waiting until a Bench Warrant had to be issued by my brother Judge in Lautoka His Lordship Justice Inoke to come to court as he did, shows that he was aware of the case and proceeded with the construction work nevertheless. As much as he was testing the will of the Lautoka City Council he was also testing the will of the court. Such conduct is either reckless or willful. Such conduct is anti social and if permitted could be contagious.

[35] The plaintiff has proved beyond a reasonable doubt that the construction of the internal wall by the contemnor Mr Alvin Raj was willful and in disobedience to the injunction issued by court on 16 February 2010.

Finding:

[36] As such I find Mr Alvin Raj of Bechu Prasad Road and Baswa Nand Maharaj Road, Field 40 subdivision guilty of contempt of THE HIGH COURT OF FIJI sitting in Civil Jurisdiction in Lautoka, for having constructed an internal partition wall in constructing a shed over lot 7, 8 and 9 on deposit plan 9140, being Housing Authority sublease at Bechu Prasad Road and Baswa Nand Maharaj Road, Field 40 subdivision Lautoka, on or about the 25 February 2010, willfully in disobedience of the injunction order issued by this court on 16 February 2010 and duly served on him on 23 February 2010.

Sentence:

[37] I sentence Mr Alvin Raj of Bechu Prasad Road and Baswa Nand Maharaj Road, Field 40 subdivision, for five days simple imprisonment suspended for one year. The sentence will be activated and Mr Alvin Raj will be arrested and imprisoned, only in the event committal proceedings are commenced before this court or any court in Fiji against Mr Alvin Raj within the said one year and for no other matter, proceedings, charge or offence whatsoever.

Costs:

[38] These proceedings were brought about due to the conduct of the contemnor Mr Alvin Raj acting indifferently to the process of this court and as such should pay the costs of these proceedings on an indemnity basis, which I assess at $5,000.00 to be paid within one week from today to the plaintiff.

Y I Fernando
JUDGE

At Lautoka
11 May 2010