Faaizan Investment Ltd v Suva City Council [2011] FJHC 411; HAA003.2011 (1 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA003 of 2011

BETWEEN:

FAAIZAN INVESTMENT LIMITED
Appellant

AND:

SUVA CITY COUNCIL
Respondent

Hearing: 24 June 2011
Judgment: 1 August 2011

Counsel: Mr. F. Vosarogo for Appellant
Mr. Z.S. Khan for Respondent

JUDGMENT

[1] The appellant was convicted of failing to comply with a notice from the Suva City Council to remove an unauthorised building structure. On 16 June 2010, the appellant was sentenced to a total fine of $42,050.00 on the basis that the offence continued for 840 days and was ordered to pay $100.00 costs. The fine and costs were to be paid to the Suva City Council within 60 days from the date of sentence.

[2] On 27 May 2011, I granted the appellant leave to appeal out of time and stayed the orders made by the learned Magistrate pending determination of the appeal.

[3] The issue that arose from the grounds of appeal is whether the appellant was convicted and sentenced in breach of natural justice.

[4] The charge against the appellant was filed in the Magistrates' Court on 4 April 2008. On the same date, a summons was issued for the appellant to answer to the charge. Since the appellant was a corporation, the summons was served on a director of the company on 27 May 2008. On 5 June 2008, the case was called in the Magistrate's Court. The appellant was represented by counsel, Mr. Raza. Plea was deferred.

[5] After 5 June 2008, the proceedings are marked with unnecessary adjournments. Most of the adjournments were granted to allow the appellant to get the building plan approved by the Suva City Council. Unfortunately, the prosecutor appearing in the Magistrate's Court for the Suva City Council was equally responsible for the adjournments.

[6] On 21 July 2009, the learned Magistrate was informed that the Suva City Council was in a process of approving the plan filed by the appellant. The Council needed another 6 weeks to approve the plan.

[7] On 1 September 2009, the learned Magistrate was advised that Mr Raza could not appear as he was attending to a High Court case. The case was adjourned to 28 October 2009. Thereafter Mr Raza did not appear in the case. On 28 October 2009, the prosecutor for the Suva City Council applied for a formal proof in the absence of counsel for the appellant.

[8] After 28 October 2009, the case was adjourned on four occasions on the prosecutor's request to check on compliance by the appellant. The appellant's counsel was not present in any of these occasions.

[9] On 21 May 2010, the learned Magistrate proceeded to formal proof hearing in the absence of the appellant's counsel. After convicting the appellant, the learned Magistrate adjourned the case to 16 June 2010 for sentence. On 16 June 2010, sentence was imposed in the absence of the appellant's counsel.

[10] By the time the formal proof hearing was held, the Criminal Procedure Code had been repealed and replaced with the Criminal Procedure Decree.

[11] The appellant was charged with an offence that was punishable only by fine. The appellant elected to appear in court by counsel. Once the appellant had engaged counsel, it was counsel's duty to ensure that the appellant was represented in all the hearings. After making numerous appearances, on 1 September 2009, counsel for the appellant did not appear in the case as he was engaged in another court. Thereafter, the court record is silent as to the reasons why counsel for the appellant never appeared in subsequent hearings in the lower court. One would expect counsel to enquire about the case from the registry rather than abandoning the client without notice.

[12] When the learned Magistrate proceeded to formal proof, the appellant had no notice of the hearing. The appellant had no knowledge that the hearing had proceeded in the absence of counsel. Sentence was imposed without any mitigation. Again, the appellant had no notice of the sentencing hearing. The appellant only came to know about the conviction and sentence when the Suva City Council attempted to enforce the order for fine and costs.

[13] Clearly, the appellant is not at fault for not appearing in the hearings. The appellant engaged counsel to appear in court. Without any notice to the appellant, counsel stopped appearing in hearings.

[14] Counsel for the respondent submits that despite any flaws in the hearings, the appeal should be dismissed because the offence is a strict liability and what possible defence the appellant could have to the charge.

[15] While I find there is some force in counsel's submission, I cannot accept that just because an accused is charged with a strict liability offence, natural justice should be denied. Due process applies to all types of offences. The right to be heard is the cornerstone of our justice system.

[16] I am satisfied that the appellant was denied natural justice. The conviction is quashed and the entire sentence is set aside. The case is remitted to the Magistrate's Court for a re-trial.

Daniel Goundar
JUDGE

At Suva
1 August 2011